Whitmark v. Lorton — 29 N.Y. St. Rep. 322

Majority

p. 322

Mary Whitmark, Resp’t, v. William B. Lorton, App’lt.

(New York Common Pleas, General Term,

Filed February 3, 1890.)

Headnote

1. Pleading—District courts—Amendment.

In the absence of clear and convincing proof to the contrary, it will not be held that a district court judge erred in allowing an action before him. to proceed as an action for conversion. The summons in such court being uniform in all actions, it is not apparent therefrom that the action was not brought for a tort.

3. Conversion—Damages.

In the absence of proof of value, nominal damages only are recoverable in an action for conversion.

3. Same—Evidence.

Proof of what plaintiff paid, or agreed to pay, for the property alleged to have been converted, is no proof of its value.

Appeal from judgment of fourth district court.

M. Strassman, for resp’t; J. Fennell, for app’lt.

There is nothing in the justice’s return to indicate that this action was not originally brought to recover damages for conversion, and while as an abstract proposition of law the appellant’s contention that the justice had no power by way of amendment of the complaint to allow the substitution of any action sounding in tort for an action upon contract, must be conceded to be correct, 59 N. Y., 268 ; 74 id., 442, the action of the appellate court reversing the proceedings of the trial justice must be predicated upon clear and convincing proof that the justice erred in the exercise of his powers. The summons issued out of a district court is uniform for all actions of which such courts have jurisdiction, and it was therefore not apparent from the summons issued herein that this action was not for conversion. The certificate of the justice to the return distinctly states that the action was for damage for conversion, and the proceedings upon the trial sustain the justice. The pleadings were oral, and this court is therefore not enabled to say that the amendment allowing the action to proceed as an action for the conversion of personal property was not prudential merely, though wholly unnecessary, and for want of proof to the contrary it must be so regarded.

p. 323

The trial judge erred, however, in awarding nominal damages to the plaintiff. There is no proof of the value of the sewing machine, for the conversion of which this action was brought, and in the absence of proof of value nominal damages only are recoverable. Conn oss v. Meir, 2 E. D. Smith, 314.

It is true that plaintiff testified that she had paid forty-nine dollars to one Tuclcermann on account of the purchase price of the machine, but proof of what plaintiff has paid or agreed to pay for the thing alleged to have been wrongfully converted is no proof of its value.

Judgment should be reversed and a new trial ordered, costs to abide event

Bookstaver, J., concurs.