Levisohn v. Clevenger — 56 N.Y. St. Rep. 127

Majority

p. 127

Raphael Levisohn et al., Resp’ts, v. William A. Clevenger, App’lt.

(Supreme Court, First Department, General Term,

Filed November 17, 1893.)

Headnote

1. Evidence—Conversion.

In an action for conversion, the price at which other similar property was sold, is not relevant upon the question of the value of the converted property.

2. Appeal—Harmless error;

Where the irrelevant evidence does not go to the right, hut only to the amount of recovery, and the other evidence is ample to sustain the finding of the jury, it is not prejudicial.

Appeal by defendant from a judgment entered on a verdict in _avor of plaintiffs, and an order denying a motion for a new trial on the minutes.

William B. Ellison, for app’lt; Felix Jellonik, for resp’ts.

This action was brought to recover damages for the conversion of thir.ty-four diamonds and one diamond stud, of the aggregate weight of about thirty-four carats. There was no dispute about the number or weight of the diamonds, and but two questions of fact were litigated on the trial: (1) Did the defendant purchase the diamonds in good faith? (2) What was their value? The jury found that the defendant purchased in bad faith, and that the value of, the diamonds was $1,700, which is at the rate of fifty dollars per carat. The evidence is abundant to sustain the verdict that the defendant purchased in bad faith, is liable in trover for the value of the goods, and that they were worth the sum found by the jury. The plaintiff purchased these and other diamonds on the 8th or 9th of January, 1891, and they

p. 128

were permitted to show the- price per carat for which they sold some of the diamonds so purchased. It is urged that this was •error. Undoubtedly the price at which the other diamonds were sold was not a relevant fact upon the question of the value of the diamonds converted. This evidence did not go to the right, but to the amount, of recovery; and, the evidence being ample to sustain the finding that the goods were of the value assessed by the jury, it is apparent, we think, that the error did not prejudice the defendant.

The judgment should be affirmed, with costs.