Lachman v. Young — 141 N.Y.S. 337

Majority

p. 337

LACHMAN v. YOUNG.

(Supreme Court, Appellate Term, First Department.

May 8, 1913.)

Headnote

Appeal and Error (§ 1177*)—Determination of Cause—Necessity of. New Trial.

■ Where,. in an. action for damages to an automobile, the testimony showed that repairs not rendered necessary by the accident were included in the bill offered in evidence, and there was nothing by which such repairs could be segregated, the court, on appeal from an erroneous judgment for the full amount of the bill, must grant a new trial.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 4597-4604, 4606-4610; Dec. Dig. § 1177.*]

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

. Action.by Bernard Lachman against William R. Young, Jr. From a judgment for plaintiff, rendered by the Municipal Court of the City of New York, defendant appeals. Reversed, and new trial ordered.

Argued April term, 1913, before GUY, GERARD, and PAGE, JJ.

Charles W. Philipbar, of New York City, for appellant.

James M. Donohue, of New York City, for respondent.

The action was to recover for damages to an automobile, occasioned by collision with another automobile. The fact that the rear wheel of the defendant’s automobile was damaged would seem to disprove the plaintiff’s testimony that the front of the defendant’s automobile struck his car.

The repairs made necessary by the collision were not properly proved. The testimony showed that repairs not rendered necessary by the accident were included in the bill offered in evidence, but judgment was given for the full amount. As there is no evidence by which these can be segregated, we would be compelled to grant a new trial.

The judgment will therefore be- reversed, and a new trial granted, with costs to the appellant to abide the event.