Miller v. Levy — 104 N.Y.S. 368

Majority

p. 368

MILLER et al. v. LEVY.

(Supreme Court, Appellate Term.

May 16, 1907.)

Headnote

1. Damages—Breach of Contract.

Where cloth delivered by plaintiffs to defendant to be sponged was returned in a damaged condition, the measure of damages was the difference between the value of the cloth in the condition in which it was delivered and its value in the condition in which it was returned.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Damages, §§ 320-324.]

2. Same—Evidence of Value.

Where plaintiffs delivered cloth to defendant to be sponged, and alleged that it was returned in a damaged condition, a paper, purporting to be a receipted bill, showing that certain parties had sold cloth to plaintiffs and the amount which plaintiffs had paid, was incompetent to prove the value of the cloth.

Appeal from Municipal Court, Borough of Manhattan, 'Thirteenth District.

Action by Jacob Miller and another against Harris Levy. Judgment for plaintiffs, and defendant appeals.

Reversed.

Argued before GILDERSLEEVE, P. J., and SEABURY and BRADY, JJ.

Louis Levene (Max Schleimer, of counsel), for appellant.

Myron S. Yochelson, for respondents.

This action was brought to recover damages for breach of contract, and was tried upon oral pleadings. The plaintiffs delivered to the defendant 13 pieces of cloth to be examined and sponged. The plaintiffs contended that when the goods were returned they were damaged, and the trial justice awarded judgment in favor of plaintiffs for $100 damages. There is no evidence in the case to sustain this award of damages. The proper measure of damage in such a case is the difference between the value of the goods in the condition in which they were delivered and their value in the condition in which they were returned. The plaintiffs offered testimony to show that when the goods were returned they were worth 14 or 15 ■cents a yard. But there is no proper evidence to show what the goods were worth when they were delivered to the defendant for sponging.

To prove their value before delivery the plaintiffs offered in evidence, and the trial justice received, over the objection and exception of the defendant, a paper, purporting to be a receipted bill, showing that A. D. Juilliard & Co. had sold cloth to plaintiffs, and the amount which the plaintiffs had paid. This bill was wholly incompetent, and should have been excluded. As there is no other evidence of the value of the cloth before it was delivered to the defendant in the record, the judgment rendered must be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.