40 Misc. 664 | N.Y. App. Term. | 1903
The plaintiff’s van was injured by defendant’s car. The plaintiff sued for the damages caused thereby. The case was tried before the justice, with a jury. Several witnesses were called on each side, and the jury found in favor of the plaintiff in the sum of $249, the whole amount for which the action was brought. Defendant appeals.
The judgment is assailed on two alleged errors of the trial justice: (1) For not dismissing the complaint on the ground of improper and inadequate proof of damages. (2) In instructing the jury that if they found a verdict for the plaintiff at all, it could only be in the amount of $249. The evidence as to the amount of the damage sustained was as follows, viz.: Plaintiff testified in detail what injuries the van suffered. He then goes on to state, “ The van cost when new $669. I took it to Nelson, the man who made it. At time of accident it was like new. I had it brand new in January of this year. • I only had it a
In his charge to the jury, the court said: “ Of course, if you find a verdict for the plaintiff at all, it can only be in the amount of $249. * * * so that, if you find that the plaintiff was not guilty of any negligence that contributed to the accident, and if the defendant was guilty of negligence, which caused the accident, you will find a verdict for the plaintiff for $249.” Defendant excepted to that portion of the charge wherein the court said that the verdict could be only in the amount of $249.
It will be observed by a careful reading of the testimony, that only the cost is given, and there is no statement or evidence that such cost represented the reasonable worth of the necessary repair.
The justice manifestly took the cost of repairing, $320, to be the damage proved, and this being a sum in excess of the amount-demanded in the complaint, he instructed the jury as we have seen, that, if they found for plaintiff, their verdict should be in the sum of $249, which was the limit fixed by the complaint. In the absence of evidence that the repairs were necessary and reasonably worth the sum paid, it was error to hold that the sum paid could be recovered, up to the limit allowed by the demand in the complaint. See Gumb v. Twenty-third St. R. R. Co., 114 N. Y. 414; Lynch v. Kluber, 20 Misc. Rep. 603; Volkmar v. Third Ave. R. R. Co., 28 id. 141; Schimpf v. Sliter, 64 Hun, 466. Moreover, had the proof as to the amount of damages been adequate the. exact amount to be awarded was entirely and exclusively one for the jury.
Ebeedman, P. J., and Giegeeici-i, J., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.