Droege v. Interurban Street Railway Co. — 91 N.Y.S. 71

Majority

p. 71

DROEGE v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term.

December 17, 1904.)

Headnote

1. Damages—Excess over Proof—Mod lfication of Judgment.

Where plaintiff claimed $150 for injuries to his person and $50 for injuries to his clothing, and the testimony relating to the injuries to his clothing was stricken out, a judgment for $200 should be modified, and rendered for $150.

V1. See Judgment, vol. 30, Cent. Dig. §§ 443, 444.

Appeal from Municipal Court, Borough of Manhattan, Tenth District-

Action by Otto H. Droege against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals.

Modified.

Argued before FREEDMAN, P. J., and BISCHOFF and GILDERSLEEVE, JJ.

Henry W. Goddard and William E. Weaver, for appellant.

Isaac V. Schavrien, for respondent. _

The only point made by the appellant ■herein is that the damages given the plaintiff in the judgment exceed the damages proven. In this the appellant is correct.

Plaintiff claimed for injuries to person and damages to personal property. For injuries to his person he claimed $150, and for injuries to his clothing he claimed $50. Upon the trial the only evidence given as to the damages to his clothing was the cost price of the several damaged articles when new, and all of such clothing was shown to have been worn for a considerable period of time prior to the accident. Upon this being pointed out to the trial judge at the close of the trial, upon motion made by defendant’s attorney the testimony regarding damages to plaintiff’s clothing was stricken out; nevertheless the court, probably inadvertently, rendered a judgment for the full amount claimed, viz., $200. The judgment should therefore be modified.

Judgment modified by reducing the amount of recovery to $150, and, as modified, affirmed, without costs to either party. All concur.