Davidson Steam Pump Co. v. Peerless Manufacturing Co. — 36 N.Y. St. Rep. 862

Majority

p. 862

The Davidson Steam Pump Co., Resp’t, v. The Peerless Manufacturing Co., App’lt.

(New York Common Pleas, General Term,

Filed February 2, 1891.)

Headnote

1. Appeal—Powers oe court oe common pleas.

The court- of common pleas of the city of New York has no jurisdiction, upon an appeal from a judgment of affirmance by the general term of the city court, to consider objections put upon the grounds that the verdict was against evidence, or the damages excessive.

2. Evidence—Prooe oe damaoes.

When all the proof upon the question of damages has been given which, in the nature of the case, is possible, the good sense of the jury must provide the answer; audit is no defense that such judgment involves more or less of estimate or opinion, having very little to guide it.

Appeal from judgment of general term of the city court, affirming judgment on a verdict. Action for breach of warranty on sale of goods.

Artemus B. Smith, for app’lt; George W. Miller, for resp’t.

Counsel for appellant urges a reversal of the judgment on grounds, the was against of evidence, and the damages excessive; but he should know that on appeal from a judgment of affirmance by the general term of the city court, this court has no jurisdiction to entertain the question he proposes for our consideration. Schwarz v. Oppold, 74 N. Y., 307 , 310; Walsh v. Schulz, 67 How., 186 ; Rowe v. Comley, 2 Civ. Pro., 424; Bell v. Bartholomew, 12 Wk. Dig., 33 We

p. 863

have authority to review only errors of law arising upon the trial, and presented here by proper exception.

The case was submitted to the jury by a charge, not only unexceptional, but actually not exSepted to; and counsel’s withdrawal was not only of exceptions to the charge but to refusals to charge, for otherwise the withdrawal was meaningless, as no exception had been taken to the charge itself.

Appellant’s chief complaint is, that the damages were not proved with sufficient explicitness ; but, “ it is often the case that damages cannot be estimated with precision, and the basis of accurate calculation is wanting. When all the proof which, in the nature of the case is fairly possible has been given, the good sense of the jury must provide the answer, and it is nc defense that such judgment involves more or less of estimate or opinion having very little to guide it.” Drucker v. R. R. Co., 106 N. Y., 157 , 164; 8 N. Y. State Rep., 599. The verdict is for one-fourth only of the sum claimed, and which on the evidence might have been awarded.

On a'critical examination of the exceptions we are satisfied that none is tenable; and the judgment and order must be affirmed, with costs.

Ablest, Bischoff and Pryor, JJ., concur.