Majority
p. 15(14 Misc. Rep. 461.) SCHOENHOLTZ v. THIRD AVE. R. CO. (City Court of New York, General Term. November 26, 1895.) Argued before FITZSIMONS and MCCARTHY, JJ.
Headnote
Bailment—Injury to Property—Cost op Repairs.In an action by a bailee for hire to recover for damages to the property caused by the carelessness of the defendant, evidence of the amount which plaintiff may have paid to have the damage repaired is admissible.
Appeal from trial term.
Action by Morris Schoenholtz against Third Avenue Railroad Company. There was a judgment in favor of plaintiff, and defendant appeals.
Affirmed.
Hoadly, Lauterbach & Johnson, for appellant.
M. Strassman, for respondent.
The evidence shows that the plaintiff hired the wagon damaged. He therefore had a special property in the same.
p. 16
That being so, and it having been damaged by the carelessness of the defendant, the plaintiff had the right to recover; to have the damage repaired, and charge the expense thereof to the defendant. So the trial justice was right in allowing plaintiff to prove what he had to pay to have such damage repaired. That is the only exception taken to the admission or exclusion of testimony. The only exception to the judge’s charge is based upon that part of the charge which directs the jury to find for plaintiff for such repairs, the amount being $23.50, in case they rendered a verdict in his favor. Ail the rest of the exceptions are taken to certain requests which plaintiff requested the court to charge in his favor, and also because of the refusal of the court to charge certain requests of the defendant. The judge’s charge, in our opinion, submitted to the jury fully and fairly the law of the case. It appears to us that it was very much in defendant’s favor, because of the fact, apparently, that plaintiff’s counsel deemed it his duty to submit 28 requests to charge. Many of them were substantially embraced in the judge’s charge. The defendant submitted 17 such requests. Many of them also were included in the judge’s charge. A careful reading of all these 45 requests convinces us that the main object counsel had in view in their submission was to entrap the trial justice, and to obtain something which they were unable to secure during the submission of the evidence or against the judge’s charge, viz. a good exception. Such a practice should not be encouraged. As before stated, the judge’s charge contained all the law that it was necessary for the jury to know, so far as this case was concerned; and counsel certainly were satisfied with it, because no substantial objection was taken to it; and counsel, in all fairness, should have rested there. Every request that was charged in plaintiff’s favor and at his suggestion was excepted to by the defendant’s counsel, and every request that the justice refused to charge as requested by the defendant was excepted to, as' well as any modification of such requests; but none of the exceptions so taken, in our judgment, should entitle defendant to a new trial. The judgment must be affirmed, with costs.