Aherin v. O'Brien — 45 N.Y. St. Rep. 80

Majority

p. 80

Patrick Aherin, Resp’t, v. John J. O’Brien, App’lt.

(Supreme Court, General Term, Fourth, Department,

Filed May 13, 1892.)

Headnote

Wabbahty—Damages.

The warranty on the sale of a horse was that he was five years old, would go ^ood single or double and was a good worker. Held, that plaintiff was entitled to recover only for such defects as affected the value of' the horse as a good worker; that evidence as to the difference between his-value when blind in both eyes and if he was sound and all right was not within the rule of damages applicable to the case, and that as he failed to furnish any proper proof of damage" he could only recover nominal, damages.

Appeal from a judgment of the Onondaga county court,, affirming a judgment rendered in a justice’s court.

George W. O'Brien, for app’lt; Wandell & Magee, for resp’t.

The action-was for breach of warranty on the sale of a horse. The only representation of fact relied upon by the plaintiff was, “ That the horse was five years old, would go good single or double and was a good worker.” That the horse was-not a good worker was the only breach of warranty proved.

The plaintiff was entitled to recover the difference between the-value of the horse if he had been a good worker and his value as he was in that respect. In other words, he was entitled to recover only for such defects as affected the value of the horse as a good

p. 81

worker, and only to the extent that they reduced his value as-such.

All the evidence given upon the question of damages was, that the horse blind in both eyes was worth sixty dollars, and that if he had been sound and all right he would have been worth from one hundred and thirty to one hundred and forty dollars. This-evidence was not within the rule of damages applicable in thiscáse, and was wholly insufficient to justify the judgment awarded. Indeed, there was no evidence disclosing the amount of damage sustained by the plaintiff, nor from which such damage could b& ascertained. The plaintiff having failed to furnish any proper proof of damages, could recover at most only nominal damages. Fales v. McKeon, 2 Hilt., 53; O'Brien v. Jones, 91 N. Y., 193 .

We think the justice erred in awarding the plaintiff judgment for substantial damages, and that the county court should have reversed the judgment.

Judgment of the county court and of the justice’s court reversed, with costs.

Hardin, P. J., and Merwin, J., concur.