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Warshawsky v. Dry Dock, East Broadway & Battery Railroad

86 N.Y.S. 748 Court N.Y. App. Term Decision date 1904-02-23 English

Delivered by FREEDMAN, P. J.

Contents

Majority

p. 748
WARSHAWSKY et al. v. DRY DOCK, E. B. & B. R. CO.
(Supreme Court, Appellate Term.
February 23, 1904.)

Headnote

1. Damages—Accident—Cost oe Repairs.
Testimony as to the cost oí repairs necessitated by injury to a wagon is insufficient as proof of the extent of damages.
2. Same—Recovery eor a Horse—Death.
A recovery in damages for the value of a horse cannot he sustained where it was not shown that the horse died as a result of the accident
p. 749
Appeal from City Court of New York, Trial Term.
Action by Selig Warshawsky and others against the Dry Dock, East Broadway & Battery Railroad Company. From a judgment of the City Court for plaintiffs, and from an order denying a new trial, defendant appeals. Reversed.
Argued before FREEDMAN, P. J., and GIEGERICH and Mc-CAEL, JJ.
Bayard H. Ames and F. Angelo Gaynor, for appellant.
Max D. Steuer, for respondents.

Assuming that the case as made upon the trial was one for the jury, the judgment cannot be sustained, because the-damages were inadequately proved. The son of one of the plaintiffs, who was called to testify as to the repairs done to the wagon, was not qualified as to the reasonable value of the necessary repairs, and his testimony as to the cost alone was insufficient. Volkmar v. Third Ave. R. R. Co., 28 Misc. Rep. 141 , 58 N. Y. Supp. 1021 . Moreover, it was not shown that the horse for the value of which a recovery was had died as a result of the accident.

The judgment and order should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.