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Gilligan v. Consolidated Gas Co.

94 N.Y.S. 273 Court N.Y. App. Term Decision date 1905-06-26 English

Decision Majority — SCOTT, P. J. · Dissent — MacLEAN, J.

Contents
p. 273
GILLIGAN v. CONSOLIDATED GAS CO. OF NEW YORK.
(Supreme Court, Appellate Term.
June 26, 1905.)

Headnote

Husband and Wife—Pbopebty of Wife—Weabinq Appabel—Injubies— Rights of Husband.
In an action by a husband for injuries to personal property by the explosion of one of defendant’s gas meters in his apartment, he could not recover damages for injuries to the wearing apparel of his wife; she being the proper party to sue therefor.
[Ed. Note.—For cases in point, see vol. 26, Cent. Dig. Husband and Wife, § 776.]
MacLean, J., dissenting.
Appeal from Municipal Court, Borough of Manhattan, Eleventh District.
Action by Michael Gilligan against the Consolidated Gas Company of New York. ' From a Municipal Court judgment in favor of plaintiff, defendant appeals.
Modified.
Argued before SCOTT, P. J., and MacEEAN and DUGRO, JJ.
p. 274
Shearman & Sterling, for appellant.
Stern, Singer & Barr, for respondent

The allowance of the value of the wife’s property was unauthorized. The error can, however, be corrected by reducing the judgment by $38, and affirming it as reduced, without costs. As to the other property, I am inclined to think that the proof of value was sufficient, and the best that plaintiff could be expected to offer under the circumstances. The plaintiff is not to be denied all relief because, owing to the destruction of his property, he cannot give exact expert evidence of value.

Judgment should be modified by the deduction of $38, and, as modified, should be affirmed, without costs.

DUGRO, J., concurs.

(dissenting). In this action to recover damages for destruction of certain furniture and wearing apparel, alleged to have been caused by the negligence of the defendant, through the explosion of one of its meters in the apartment of the plaintiff, there was evidence of a leak in the meter, of notice by the wife to the plaintiff to a collector of the defendant, though disputed, and that the meter exploded, upon which the trial justice might find, as he did, negligence on the part of the defendant, calling for no interference here, but the amount of damages awarded was not proper; including, as it evidently did, $38 for hats, coat, waist, and skirts, presumably paraphernalia belonging to the wife, and for which she herself might recover under the domestic relations law (Whiton v. Snyder, 88 N. Y. 299 , 305-307), although anomalously her husband would be bound to supply or to replace them as necessaries. The remainder was for damage to the wearing apparel of the plaintiff and to household furniture. The evidence of value thereof, however, was clearly insufficient, for first cost and improper qualification of the plaintiff as an expert afforded insufficient basis for more than conjectural valuation. The judgment must therefore be reversed, and a new trial ordered.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

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