Bick v. Bleecker — 107 N.Y.S. 29

Majority

p. 29

BICK v. BLEECKER.

(Supreme Court, Appellate Term.

November 29, 1907.)

Headnote

Appeal—Reduction of Judgment.

Where the only competent evidence as to the value of fruit, for the conversion of which plaintiff sued, fixed it at a certain amount, a recovery of a greater sum will be reduced to that sum on appeal.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4498-4505.]

Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action by Isaac Bick against Harry Bleecker, sued as Hirsch Doe. From a judgment for plaintiff, defendant appeals. Reduced and affirmed.

Argued before GILDERSDEEVE, P. J., and LEVENTRITT and EREANGER, JJ.

Bernard Breitbart, for appellant.

It appears from the record that the defendant is the owner of a number of push carts which he rents. One was rented by the plaintiff, and, not being returned by him, the defendant went to the market and found and took the cart. There was some fruit in the cart belonging to the plaintiff when the defendant took it, for the value of which plaintiff sued. There is no competent evidence of the value of the fruit, except that given without objection by the defendant and his witness, which fixes it at $2.

The judgment should be reduced to the sum of $2, and $5 costs in the court below, and affirmed, without costs of this appeal to either party.