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De Witt Allen Auto Co. v. Canavan

113 N.Y.S. 1002 Court N.Y. App. Term Decision date 1909-01-07 English

Delivered by HENDRICK, J.

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p. 1002
DE WITT ALLEN AUTO CO. v. CANAVAN et al.
(Supreme Court, Appellate Term.
January 7, 1909.)

Headnote

1. Damages (§ 39[1] )—Injuries to Personal Property—Usable Value.
In an action for injuries to personal property, usable value may constitute an element of damage.
. [Ed. Note.—Eor other cases, .see Damages, Cent. Dig. §§ 260-284; Dec. Dig. § 39.*]
2. Appeal and Error (§ 1171*)—Prejudice—Damages.
Where, in an action for injuries to an automobile and other property, the items of actual damage proven by competent testimony exceeded the amount of the verdict, so that, if anything was awarded for loss of business, it was necessarily small, the verdict would not be disturbed because of error in submitting the issue of damages from loss of earnings of the automobile.
[Ed. Note.—Eor other cases, see Appeal and Error, Cent. Dig. § 4546; Dec. Dig. § 1171.*]
Appeal from City Court of New York, Trial Term.
Action by the De Witt Allen Auto Company against David P. Canavan and others. From an order denying defendants’ motion for a new trial, they appeal.
Affirmed.
Argued before GIEGERICH, HENDRICK, and FORD, JJ.
p. 1003
James J. Fitzgerald, for appellants.
William C. Relyea, for respondent.

This is an appeal from an order denying a motion for a new trial after a verdict for the plaintiff. The only point urged for reversal is that the court erred in submitting to the jury certain elements of damage. No objection was made to the admission of the testimony to prove this damage, except in one instance, in relation to the testimony to establish the average monthly earnings of the damaged car. Usable value may constitute an element of damage, and in this case the items of actual damage to the machine and to the other property, which were proven by competent testimony; exceed in amount, the sum for which the jury rendered its verdict. If anything was allowed by the jury for the loss of business, it must have been, and probably was, very small, and the verdict should not be disturbed. Schile v. Brokhahus, 80 N. Y. 614 .

Order affirmed, with costs.

GIEGERICH, J., concurs in the result. FORD, J., concurs.

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