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Bernstein v. Feldstein

113 N.Y.S. 729 Court N.Y. App. Term Decision date 1908-12-16 English

Delivered by HENDRICK, J.

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p. 729
BERNSTEIN v. FELDSTEIN.
(Supreme Court, Appellate Term.
December 16, 1908.)

Headnote

Evidence (§ 554[1] )—Value of Property—Opinion Evidence.
The testimony of an expert on the issue of depreciation in the value of fixtures, that there would be a depreciation of 40 per cent., qualified by the statement that that meant all he would pay for the property was 60 per cent, of the purchase price, was not proper evidence of value.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2375; Dec. Dig § 554.*]
Appeal from Municipal Court, Borough of Manhattan, Eighth District.
Action by Frank Bernstein against Samuel Feldstein. From a judgment for plaintiff, defendant appeals.
Modified and affirmed.
Argued before GIEGERICH, HENDRICK, and FORD, JJ.
Freiman & Dobroezynski, for appellant.
M. S. Weeker (Harry S. Austin, of counsel), for respondent.

It is evident from the record that the jury should have allowed for some depreciation in the value of the fixtures. The testimony of the expert that there would be a depreciation of forty per cent, was qualified by his statement that that meant that all he would pay for it was 60 per cent, of its purchase price, and it was error to permit the testimony to stand as evidence of value. On the whole case the verdict for the plaintiff was proper, and substantial justice will be done by reducing the verdict by 40 per cent, of the value of the fixtures, that being the only evidence of the depreciation in the case.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the verdict to the sum of $231.80, with appropriate costs in the court below, in which event the judgment, as so modified, is affirmed, without costs in this court to either party. All concur.