Merris v. Hunt — 54 N.Y. St. Rep. 548

Majority

p. 548

George Merris, App'lt, v. Charles Hunt, Resp’t.

(Supreme Court, General Term, Fourth Department,

Filed September 23, 1893.)

Headnote

Wabbauty—Damages—Evidence.

In an action brought in justice’s court to recover damages for breach of warranty in the sale of a horse, the plaintiff recovered to the extent 'of $38.75, but the county court reversed the judgment upon the ground that the evidence of plaintiff himself as to the-cost of the use of another horse to favor the one in question was improperly received on the question of damages. Ho claim was made for any special damages of this character, riorwas the 'objection'taken‘that it was not proper on the 'question of damages, The evidence showed that plaintiff had sustained damages to the

p. 549

amount of Ms judgment. Held, that such evidence was not offered or received on the question of damages, but by way of explanation of what had been drawn out on cross-examination, and that while not strictly proper, was not of sufficient importance to call for a reversal, in the light of the other evidence.

Appeal from a judgment of the Onondaga county court reversing a judgment of a justice’s court in favor of the plaintiff for $38.75 damages, besides costs.

M. H. Kiley, for app’lt; Waters, McLennan & Waters, for resp’t.

The action in this case was to recover damages for breach of warranty in sale of a horse. The plaintiff recovered in the justice’s court to the extent of $38.75 damages, but the county court reversed the judgment upon the ground that evidence of the plaintiff himself as to the cost of the use of another horse to favor the one in question was improperly received on the question of damages. No claim, however, was made by the plaintiff for any special damages of this character, nor was the objection taken that it was not proper on the question of damages. Both parties appeared by counsel and it is quite clear that both sides understood what the correct rule of damages was. From the whole case the fair inference is that this evidence was not offered or received on the question of damages, but by way of explanation of what had been drawn out by defendant’s counsel in the cross examination of the plaintiff. It may be for this purpose it was not strictly proper, but it was not of such importance as to call for a reversal in the light of the other evidence in the case.

There was no doubt about the right of the plaintiff to recover some amount. The evidence of the defendant himself called for the recovery of damages to the extent of at least twenty-five dollars,, and, as appears by the amended return, he does not seem tobe willing to say that that amount will make the horse as good as warranted. One witness called by the defendant on the subject of damages, and apparently reliable, places the damages at forty-five dollars. The evidence on the part of plaintiff showed damages to the extent of fifty dollars. The finding of the justice that plaintiff sustained damages to the extent'of $38.75 is abundantly sustained by the evidence, and as well said by the county judge, “ seems to be eminently fair toward the defendant.”

The counsel for defendant suggests that errors sufficient to call for a reversal were made by the justice in other rulings on the subject of value. We think not

We think that substantial justice was done in the justice’s court, and that no errors were made that were sufficient to call for a reversal. Code, § 3063 ; Davison v. Luckman, 45 St. Rep., 727 ; Jackson v. Collins, 41 id., 590; Lockwood v. Lock wood, 38 id., 601.

Judgment of the county court reversed and that of the justice affirmed, with costs to the appellant

Hardin, P. J., concurs.