117 N.Y.S. 268 | N.Y. App. Div. | 1909
Lead Opinion
The defendants took up 34 fishing neis’which the plaintiff had set in the Great South Bay, and carried them away. This is an action for damages for the trespass, and not merely for the conversion of ■tlie nets. The plaintiff claimed the right to- recover for damage done to his business by loss of profits, and sought to show the same by a comparison of the size of his catch and the cash receipts therefor during five' days before the seizure with those afterwards with the nets that remained, about 70. ■ The case was tried by distinguished counsel, but. no objection was madé to this evidence, and when it was in no motion was made to.confine the damages to a nominal sum. Indeed, the said measure of damages seems to have been-the correct one (Egan v. Browne, 128 App. Div. 184), though we do not need to decide that, since counsel recognized it -as applicable to the case. This method of ascertaining the damage is more
The judgment should be affirmed.
Hirsohberg, P. J., and Miller, J., concurred; Burr, J., read for'reversal, and Rich, j., read for modification.
Dissenting Opinion
(dissenting):
The plaintiff was.a resident of the town of Babylon. On October 15, 1907, he hired from Philander Swezey and Ernest Swezey certain fishing nets belonging to them, together with their services as fishermen from the said 15th day of October until the 1st day of December, 1907, for which he agreed to pay them $400. The Swezeys were not residents of. Babylon. On the sixteenth day of ¡November the defendants forcibly took'up some of these nets which had been set and were being used for fishing purposes, and deprived plaintiff of the use of them for the remainder of the term for which they had been hired, ■ On the twenty-third of ¡November the. plaintiff began an action before a justice .of the peace of the town to recover damages by reason of the acts of the defendants, alleged to be unlawful, and recovered a judgment for $200, which on appeal was affirmed by the County Court. The defendants now bring the case by appeal to this court.
■ The fact of interference with the nets in question by the defendants is not denied. They seek to'show, however, that in so doing they acted as agents of the town; that the place from which the nets were removed was within the waters of the town ■; that the town officers had prohibited all persons other than residents of the town from fishing in its waters, and that the agreement between plaintiff and the Swezeys was a mere colorable one to enable the latter to fish in such waters in violation of said prohibition. Upon the trial of the action the defendants offered evidence as to the town’s title to the property where the nets were placed, which was the basis of the action of the town authorities. This evidence was excluded at the objection of the plaintiff, and this is one of the grounds of error'urged upon this appeal.
It seems important, in the first instance to. determine the character of the plaintiff’s right to the possession of' these nets and td use them for fishing purposes, for if this is unquestionable, then no injury resulted, even though such evidence were improperly excluded. If plaintiff had the right of possession and was using the nets for his own business, then, conceding that the claim of the town was-* well founded, the defendants had no right to interfere with such possession or use, for he was a resident of the town. The contract between the plaintiff and the Swezeys was sufficient to confer upon
The only remaining question is as, to. the measure of damages. As a general rule,;in an action for conversion the plaintiff is. entitled to recovér as against a stranger to the title the value of the property converted, and this is so even when.he has only a special.or limited interest therein. . (Mechanics & Traders' Bank v. F. & M. Nat.. Bank, 60 N. Y. 40; Einstein v. Dunn, 61 App. Div. 195; affd,, 171 N. Y. 648.) After satisfying his own claim or interest therein, lie:is a . trustee for the general owner as to the surplus. (Marsden v. Cornell, 62 N. Y. 215.) No evidence was given in this casé of damages within this general rule* but plaintiff sought to recover the prospective . profits which he thinks that he might have made if his possession of - the nets had not been interfered with. . This evidence, which was received without objection as to its competency or materiality, was too vague, speculative and indefinite .to sustain the judgment. It appeared that the entire number of nets hired was one .hundred and five. On the sixteenth of. November the defendants removed thirty-four of them. The plaintiff showed that for. the five days '• preceding that date.the .total amount of sales of fish was one hundred and seventy-five dollars and sixty-four cents, or thirty-five dollars and thirteen cents a day. For the period succeeding November sixteenth it only averaged five dollars and forty-one cents per day, a difference of nearly thirty dollars a day. But as only thirty-four out of one hundred and. five nets were removed, and as it does not appear that there was any difference in the size or character of the nets, it would be. impossible to assume that the whole of the loss was chargeable to defendants’ .acts. If each net were supposed, to earn an equal amount, as the total earnings of seventy-one nets after. No vetiiber' sixteenth for .the remainder; of the term of. hiring was ninety-two dollars and seventy-six cents, or about one dollar and thirty-one cents a net, the. total loss from the- thirty-four nets taken away could not exceed forty-five dollars. But it appears that, after.November sixteenth there- were some days between that and :the first of December when it was. too stormy to fish at all, and the court may take judicial, notice' that. even on" pleasant days
The judgment of the County Court of Suffolk county and of the justice of the peace should be reversed and a new trial ordered, costs to abide the event.
Dissenting Opinion
(dissenting, in part):
I am unable to concur in the conclusion that the case presented by this record is one justifying punitive damages. Voltz v. Blackmar (64 N. Y. 440), cited by Mr. Justice Gaynob in support of his conclusion, recognizes the well-settled law of this State that in this class of cases “ tlie defendant is entitled to the benefit of any circumstances tending to show that he acted under an honest belief that he was justified in doing the act complained of,” and within that rule the case at bar discloses no foundation for punitive damages. The defendant Arnold was a constable of the town of Babylon, who had been instructed by the supervisor of that town to remove the nets from the waters of the bay and to employ the necessary help for that purpose. Under these instructions he employed his codefendants. There is no evidence of personal ill-will on the part of either defendant towards the plaintiff, and nothing to charaSterize their acts as malicious. The nets were owned by a nonresident, who had been notified prior to their removal by the defendant Jackson to stop fishing in the bay, to which notice no attention was paid, as Swezey admits. The fact that the nets were leased to, and being used by, the plaintiff—a resident of the town — was not known to the defendants until plaintiff told them as they were taking up the last one of the thirty-four nets removed, and none were disturbed after this information was given. I do not think their conduct in removing the nets before the-plaintiff reached the scene and forbade further action on their part, or their retention of the nets taken up for a reasonable time to enable them to report to the town authorities and verify the claims of the plaintiff, was so grossly
1 think upon reflection, however, that the judgment is excessive and should be modified to compensatory damages-. Swezey testifies that when they went to the bay they took one hundred and seven nets, and that thereafter they brought up either nineteen or twenty more, which would make one hundred and twenty-six or one hundred and twenty-seven nets in use at the time of the acts complained of. On November sixteenth thirty-four were taken by the defendants, leaving ninety-two, which the plaintiff continued to use. There is no evidence in the record that the quantity of fish taken from' the thirty-four nets while in' use Was greater than that taken from a like number of the other nets; no evidence that the water in which the nets .taken were set was better for fishing purposes than that occupied by the nets not disturbed ; no evidence that the water in which the nets taken were set was not utilized after their removal by setting therein an equal number of the remaining nets, and there is evidence given by both the plaintiff and his witness Swezey tending to show that the fishing was poorer and not prose? cuted as diligently after November sixteenth as before. There is nothing in the record warranting the conclusion that the nets were not equal revenue-producers, and they should -be so regarded. If the nets taken had a greater earning capacity than those not disturbed, the plaintiff should have proved that fact. In the absence of such evidence the presumption that each net possessed the same earning power must obtain and form the-basis of a proper award •of damages. For the seventeen days following the taking of the nets, before-the expiration of the contract upon which the plaintiff’s rights are predicated, the ninety-two nets in use yielded an average daily revenue of five and two-tenths cents, which for the thirty-four nets taken would amount per day to one dollar, seventy-six and eight-tenths cents, and for the seventeen days in which plaintiff had the right to use them to thirty dollars and five cents, to which amount his recovery should be limited.
I, therefore, vote to modify the judgment by reducing the recovery to thirty dollars and five cents, and as so modified to affirm with costs.
Judgment of the.County Court of Suffolk county affirmed, with costs.
