McHugh v. New York Elevated Railroad — 47 N.Y. St. Rep. 73

Majority

p. 73

John J. McHugh, Pl’ff, v. The New York Elevated Railroad Co. et al., Def’ts.

(Supreme Court, General Term, First Department,

Filed June 29, 1892.)

Headnote

1. Appeal—Reference—Finding.

In cases of unliquidated damages, it is not necessary that the conclusion of the court or referee should be subject to mathematical demonstration. If the evidence is sufficient to support the finding, it will not be reversed simply because the court cannot see the precise theory upon which the result was arrived at.

3. Same—Judgment cannot be increased.

The court, on appeal, has no power to increase the judgment, although it may reduce the same;

1 Appeals by both parties from a decision entered upon the report of a referee.

C. A. B. Pratt, for pl’ff; R. L. Maynard, for def’ts.

—The defendants appeal from the whole judgment, and the plaintiff appeals from that part of the judgment which only allowed'$63.33 rental damages, it being claimed that the referee erred in limiting the rental damages to such as accrued prior tó the commencement of the action.

We see no reason for interfering with the judgment appealed from. There was evidence more than sufficient to support the conclusions arrived at by the referee. It is true that it is claimed that the precise method by which the referee arrived at the amount of rental damage" cannot be determined from the evidence. But in cases of unliquidated damages it is not necessary that the con

p. 74

elusion of the court or referee should be subject to mathematical demonstration. If the evidence is sufficient to support the finding, the court will not reverse simply because it cannot see the precise theory upon which the result was arrived at.

It is undoubtedly true that the referee was led astray by the condition of the decisions of this general term in respect to the right to recover rental damages which had accrued since the commencement of the action, he following the decisions as they then existed. But this court, upon a subsequent examination of the law, came to the conclusion that the previous ruling was error, and adopted what they believed to be the true rule in those cases. ' i

The plaintiff does not desire, apparently, a reversal of the judgment because of the rule adopted by the referee, but seems to think that this court has the power to increase the judgment to the amount which should have been granted under the subsequent decisions of this general term. We are not aware of any power in the court to increase a judgment, although they may réduce the same.

We think, therefore, that the judgment appealed from should be affirmed, with costs.

O’Brien and Patterson, JJ., concur.