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Fertitta v. Schnurmacher

117 N.Y.S. 161 Court N.Y. App. Term Decision date 1909-05-27 English

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p. 161
FERTITTA v. SCHNURMACHER.
(Supreme Court, Appellate Term.
May 27, 1909.)

Headnote

Trover and Conversion (§ 40[1] )—Damages—Amount Awarded.
Evidence in an action for conversion of a truck held insufficient to establish the value fixed by the court, necessitating a new trial.
[Ed. Note.—For other cases, see Trover and Conversion, Cent. Dig. § 242; Dec. Dig. § 40.[1] ]
Appeal from Municipal Court, Borough of Manhattan, First District.
Action by Mary Fertitta against Marcus Schnurmacher. From a judgment for plaintiff, defendant appeals.
Reversed, and new trial ordered.
Argued before DAYTON, SEABURY, and LEHMAN, JJ.
Maurice J. Katz, for appellant.
S. Feuchtwanger, for respondent.

The action was for conversion of a two-horse truck, claimed to have been hired February 1, 1908, by plaintiff to one Frank, and sold in the latter part of the same month under a chattel mortgage given by the said Frank to defendant, which mortgage included the said truck among a number of articles. The evidence as to ownership is somewhat conflicting; it being claimed by the defendant that plaintiff sold the truck to Frank.

Without passing on that question, we think, however, that the evidence as to value at the time of the sale was not sufficiently conclusive to j'ustify the j'udgment of the learned trial court. The plaintiff’s son testified that the truck, when new, two years before the time of the sale, had cost $375, and that j'ust prior to the hiring (February, 1908) it had been entirely renovated at a cost of $100, so that it was as good as new. George also testified the truck was in good condition, but gave no other evidence of value. This was substantially the plaintiff’s case on that head. As against this the defendant swore that the truck, when new, was not worth more than $175; and both he, the marshal, and the auctioneer (the latter two being-disinterested witnesses) testi

p. 162
fied that the truck was in a much worn and dilapidated condition. The record shows that on the auction it brought only $16, and the auctioneer testified, that its fair market value at the time was about $25 or $30. The trial court gave judgment for $250. We do not think the record contains sufficient evidence to show that the truck was worth this sum at the time of the sale, and the judgment must therefore be reversed.

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