Davis Sewing Machine Co. v. Best — 23 N.Y. St. Rep. 876

Majority

p. 876

The Davis Sewing Machine Company of Watertown, N. Y., Resp’t, v. William J. Best, as Receiver of the National Trust Company of the City of New York, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed November, 1888.)

Headnote

1. Appeal—Case must show that it contains all the evidence.

Where a case does not show that it contains all the evidence, or all hearing upon the findings of fact sought to be reviewed, it must be assumed that the evidence was sufficient to sustain the findings of fact. Porter v. Smith, 107 N. Y., 531 ; 12 ÍT. Y. State Rep., 479 followed.

8. Same — Objection to admission of evidence not taken at trial CANNOT BE RAISED ON APPEAL.

Where evidence was offered to show the expense incurred in making a demand for certain coupon notes, and there was no objection taken, that the complaint did not sufficiently aver the damages sought to be proven, such objection could not be considered on appeal.

3. Bailment — Bailor can recover for expenses in recovering PROPERTY WRONGFULLY WITHHELD.

A bailor is entitled to recover a reasonable allowance for the expense incurred, in endeavoring to recover the possession of property wrongfully withheld. Martin, J., dissenting.

Appeal from a judgment entered on a decision made at the Jefferson circuit, by the court, awarding the plaintiff the possession of seven coupon notes, and $88.86 damages for detention, and $1,182.08, costs.

This action was brought to recover the possession of ten promissory notes (commonly called bonds), of the plaintiff, of $1,000 each, with interest coupons attached, all payable at the National Trust Company of the city of New York, with damages for their detention. The defense is that the bonds are in the possession of defendant as a bona fide holder for value, as collateral security for the payment of $10,000, the balance of a loan made thereon by the defendant to the Security Bank of Watertown.

Upon the trial, now under review, the court found as a matter of fact, that the defendant wrongfully refused to deliver the bonds when they were demanded of him, after he was appointed receiver.

There is no certificate that the case contains all the evidence given upon the trial. The only question raised on the argument of this appeal, relates to the damages awarded plaintiff for the expenses incurred in sending its agent and attorney to New York, to demand possession of the bonds of the trust company.

Delos McCurdy and John Yard, for app’lt; Charles D. Wright, for resp’t.

Because the case does not show that it contains all the evidence, or all bearing upon the findings of fact sought to be reviewed, we must assume that the evidence was sufficient to sustain the findings of fact. Porter v. Smith, 35 Hun, 119 ; affirmed, 107 N. Y., 531 ; 12 N. Y. State Rep., 479.

In that case we said, viz.: “ It is apparent that an appellate court cannot intelligently consider a question of fact unless all of the evidence bearing upon it is before the court; and where a question of fact is sought to be reviewed it should be stated in the case that it contains all of the evidence, or all bearing upon the questions of fact sought to be reviewed. * * * It is the duty of the appellant to present a case so made up and settled that the error complained of be manifest, and not leave the court to indulge in presumptions to overthrow decisions.”

When’the evidence was offered to show the expenses incurred in sending Winslow to the Trust Company to make a demand for the coupon notes, there was no objection taken that the complaint did not sufficiently aver the damages sought to be proven by the witness. Ho such objection can now be heard. Had such an objection been taken at the trial, presumably the court would have allowed the complaint to have been amended, as was allowed in Miller v. Garling ( 12 How., 203 ). In that case an action was brought to recover the possession of a heifer which was secretly taken from the possession of the plaintiff, by the defendant, and it was held that damages are recoverable for the time spent and expenses incurred by the plaintiff in searching for the heifer after she was taken by the defendant; and upon the trial an amendment to the complaint was allowed by inserting a claim for such special damages.

In Bennett v. Lockwood ( 20 Wend., 223 ), it was held that damages are recoverable “ by a bailor for time spent and expenses incurred for searching for property wrongfully taken from the possession of a bailee.” The doctrine of that case has been followed in Wibert v. New York and Erie Railroad Company ( 19 Barb., 48 ), and in McDonald v. North (47 id., 532). In the latter case, the rule as to the measure of damages in an action of trover is said to be the value of the property taken, with interest; and the court adds, viz.: “ But this rule has many exceptions, and among them is the case where the plaintiff, being the true owner, has been subjected to the loss of time or the payment of money in searching, for the property unlawfully taken, in which case a reasonable allowance may be made by the jury for such time and expense, in addition to the value of the property and interest * * *, and a reasonable allowance for the time and expense incurred by the plaintiff, in

Dissent

p. 878

endeavoring to reclaim the property, was a damage immediately proximate to the wrong act of the defendant.”

Our attention is called, by the learned counsel for the appellant, to the New York Guaranty and Indemnity Company v. Flynn ( 55 N. Y., 653 ). There it was said, in an action to recover the possession of personal property, that “in the absence of any proof that the damages are more or less than the interest on the value, the presumption is that the damages are the interest during the time that the successful party was wrongfully deprived of the use.” We see nothing in that case which aids the appellant. And in Allen v. Fox ( 51 N. Y., 562 ), it was said that in an action to recover the possession of personal property, if it has a use able value, the value of its use during the time of its detention is a proper item of damages. We see nothing in that case which aids the argument of the appellant..

Accepting, as we must, the findings of fact made by the trial judge, inasmuch as the appellant is not in a situation to have a revifew of them, we are of the opinion that the conclusion of law pronounced upon the findings of fact was correct.

The judgment should be affirmed, with costs.

(dissenting).—This action was against the defendant, as receiver of the National Trust Company of the city of New York. It was to recover of the defendant the possession of the bonds in question, on the ground that they were unlawfully detained by him. In the complaint it was alleged that the plaintiff owned the bonds; that they came into defendant’s possession; that, upon the plaintiff’s demand, the defendant refused to surrender them, and unlawfully detained them from the plaintiff. This action was based upon a demand, upon the defendant, for the bonds and his refusal to surrender them, and not upon any demand made upon the Trust Company, or upon any unlawful conversion, detention or act by it. Under this complaint it was held that the plaintiff was entitled to recover of the defendant the sum of $80.86 for the expense of sending a lawyer to New York to demand the bonds of said company before the defendant was appointed receiver, and notwithstanding the fact that the bonds had already been demanded of the company by the plaintiff. It is not apparent to me how this recovery can be upheld. • I am aware of no principle that would justify it. The general rule of damages in actions like this is well settled. A party entitled to damages for the detention of personal property is entitled to recover the interest upon its value, or the value of its use, during the period of its unlawful detention. If properly pleaded, special damage may, per

p. 879

haps, be recovered in such an action, whei’e such damage is the necessary consequence of the defendant’s wrongful act, and is the immediate, and not remote, result of it. I do not think the proof in this case sufficient- to justify the recovery of such expenses as special damage. How the expenses allowed in this case can be said to have resulted from the detention of these bonds by the defendant, after he became receiver, I cannot understand. The cases referred to in the opinion of Judge Hardin are clearly distinguished from this, and do not, I think, sustain a doctrine which would justify the recovery in this action. I am of the opinion that the court erred in permitting the plaintiff to prove such expenses, and in including the amount in the damages awarded.

For such error the judgment should be reversed.

Judgment affirmed, with costs.