Hyperlawhypertext legal database Dundon v. Interurban Street Railway Co. 87 N.Y.S. 452

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Dundon v. Interurban Street Railway Co.

87 N.Y.S. 452 Court N.Y. App. Term Decision date 1904-03-24 English

Delivered by SCOTT, J.

Contents

Majority

p. 452
DUNDON v. INTERURBAN ST. RY. CO.
(Supreme Court, Appellate Term.
March 24, 1904.)

Headnote

1. Damages—Amount Recoverable.
Where, by her summons, plaintiff sued for $250, and by her bill of particulars claimed $240, of which $40 was for items of damage which could not be recovered in the action, and as to which the trial justice refused to receive evidence, a judgment for $250 will be reduced to $200.
Appeal from Municipal Court, Borough of Manhattan, Fourth District.
Action by Kate Dundon against the Interurban Street Railway Company. From a judgment of the Municipal Court for plaintiff, defendant appeals. Modified.
Argued before FREEDMAN, P. J., and SCOTT and BLANCHARD, JJ.
Henry W. Goddard and William E. Weaver, for appellant.
Jacob Stiefel, for respondent.

Upon the conflicting evidence, we are not disposed to interfere with the determination of the justice as to the defendant’s liability. The judgment must, however, be reduced. By her summons, the plaintiff sued for $250. By her bill of particulars, she claimed only $240, of which $40 was claimed for items of damage which could not be recovered in this action, and as to which the justice properly refused to receive evidence. She only claimed $200 for such damages as she could properly recover. The justice, doubtless by inadvertence, awarded her the whole sum of $250, with costs.

The judgment as rendered must be reduced by $50, and, as so reduced, affirmed, without costs in this court to either party. All concur: