Frink v. Stevens — 34 N.Y.S. 411

Majority

p. 411

FRINK v. STEVENS.

(Supreme Court, General Term, Fourth Department.

July 5, 1895.)

Headnote

Appeal—Harmless Error.

In an action for damages for injury to a horse caused by defendant’s wrongful act, a judgment for plaintiff should not be disturbed on appeal because a witness, who had bought and sold many horses, and knew their va ue, in testifying as to the value of the horse in question before and after the Injury stated what another person said as to the extent of the injury.

Appeal from Cortland county court

Action by Harvey Frink against Jacob Stevens for damages for injuries to plaintiff’s mare. Judgment in favor of plaintiff was rendered by the justice without a jury, which, on appeal to the county court, was modified and affirmed, with costs, and defendant appeals

Affirmed.

Argued before HARDIN, P. J., and MARTIN and MERWIN, Jt

Bouton & Ohamplin, for appellant.

Nathan L. Miller, for respondent

This action was for damages to the plaintiff’s mare, alleged to have been caused by the defendant’s wrongfully, illegally, and maliciously unhitching her and driving her out of his bam, through a doorway 20 feet above the ground, onto a barbed-wire fence, whereby she was injured, to the plaintiff’s damage of $40. The defendant appeared before the justice on the return day of the summons, but interposed no answer. He called for a jury, but, when informed that he must first join issue in the case, he left the

p. 412

court, and did not return. There was no direct evidence given on the trial showing that the defendant was guilty of the act charged, but the circumstances testified to tended to show that he performed the acts complained of, and were sufficient, we think, to justify the trial court in so finding. If it be assumed that the statement of the witness as to what Dr. Baker said as to the extent of the injury to the mare was inadmissible, yet we think the judgment should not be disturbed upon that ground, as it is manifest that it could not have affected the result. It had no bearing upon the question whether the defendant committed the injury complained of, and upon the question of damages the witness testified that he had owned a good many horses, bought and sold them, knew their value, and then gave his opinion as to the value of the mare in question before and after she was injured. Thus the only evidence of the plaintiff’s damages was the opinion of the witness, without any regard to what the doctor had said to him. If, therefore, it was error to admit this evidence, it was, at most, a technical one, which did not affect the merits, and was properly disregarded by the learned county court. Code Civ. Proc. § 3063. We think the judgment of the county court was right, and should be affirmed.

Judgment of the county court affirmed, with costs. All concur.