| U.S. Circuit Court for the District of Eastern New York | Mar 15, 1871
In respect to the first re’quest to charge, it is sufficient to say, that the defendant’s complaint, in his suit against the mortgagor, which waste evidence, contains the defendant’s declaration of the insolvency and irresponsibility of the mortgagor. That fact was, moreover, conceded, on the trial, and so stated to the jury, without objection.
In respect to the second request to charge, I see no reason for believing that it was improperly refused. The request assumed, as a fact in the ease, that the plaintiff had taken control of the building after it was placed on Jackson avenue, whereas, there was no evidence of such a fact. All that
The remaining question arises on the third request to charge, and the objection to that portion of the charge given which related to the evidence respecting the cost of the building. Upon this question, I remark, that the evidence as to the description of the building removed was clearly material. This evidence showed it was an irregular structure, intended for a sort of barn, with expensive stalls, and stained wood, and painted glass, erected without much regard to expense, and, in many of its features, peculiar. It was erected on a plot of land upon the edge of salt meadows, in a place remote from business. Few buildings were near it, and those of poor character. The tide at times ebbed and flowed under it. Upon the evidence, the building was dissimilar, in its mode of construction, to most buildings con-' structed for the same use. and was not a building likely to be desired by any one, or that could be put to use by any considerable number of persons, perhaps not by any person, within a reasonable distance from the place of its erection. Such an erection has no market value. There is no market which can fix its value. The method, then, whereby the jury were to be informed as to the amount of damages which its removal caused, was to give them the opinions of men who were acquainted with the property and its surroundings, and the value of property there. Such evidence was given by the defendant. Now, it seems to me, that, in the case of such an erection, the jury are entitled, also to know the cost of the thing, not as evidence of its value," but to enable them the better to test the worth of the opinions of the witnesses. The jury would be sure to use, for that purpose, their own notions of the cost, derived from its description. It would be impossible to exclude the idea of the cost from the deliberations of the jury. Why, then, should they be prevented from having, not an opinion as to its cost, but the fact of its actual cost, coupled, as it was, with the distinct charge, that its cost did not show its value, and that they were not to take the cost as the measure of damages? So the jury understood the charge given, and they used the evidence of cost for that purpose alone, as their verdict shows, for they did not give the cost, which was over $9,000. I am satisfied that the objection to the charge upon this point cannot be sustained. It seems to me to be correct in principle, and it is sustained by the authorities, even by those cited by the defence.
The motion for a new trial must, therefore, be denied.