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Foley v. Forty-Second St., M. & St. N. Ave. Ry. Co.

101 N.Y.S. 780 Court N.Y. App. Term Decision date 1906-12-11 English

Delivered by DAVIS, J.

Contents

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p. 780
FOLEY v. FORTY-SECOND ST., M. & ST. N. AVE. RY. CO.
(Supreme Court, Appellate Term.
December 11, 1906.)

Headnote

Damages—Injury to Personal Property—Speculative Damages.
Where, in an action for injuries to plaintiff’s automobile, there was no evidence that he used it for any business purpose whatever, or that he hired any other vehicle to take its place while it was being repaired, an allowance of $150 for loss of the use of the automobile, based on expert testimony as to the value of the use of a vehicle like the plaintiff’s, was erroneous, as speculative.
Appeal from Municipal Court, Borough of Manhattan, Third District.
Action by John Foley, Jr.> against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed on condition.
See 97 N. Y. Supp. 958 .
Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.
William E. Weaver, for appellant.
Wilcox & Green, for respondent.

The plaintiff recovered judgment for $473.44 for injuries to his automobile. Defendant’s north-bound car ran into the rear of the automobile as it was also proceeding northward. The plaintiff’s damages as allowed by the court included an item of $150 for loss

p. 781
of use of automobile. This finding was based upon expert testimony as to the value of the use of an automobile like the plaintiff’s. There was no evidence to show that plaintiff used his automobile for any business purpose whatever. The inference from the evidence is that he used it for his pleasure and recreation. It does not appear that he hired any other vehicle to take its place. Under the circumstances, we think it was error to allow plaintiff to prove this item of $150. It was highly speculative.

The judgment should be reversed, and a new trial granted, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the judgment to $322.35, together with interest and costs below, in which case the judgment, as modified, will be affirmed, without costs of appeal. All concur.