Mendleson v. Rensselaer , 103 N.Y.S. 578 ( 1907 )

Cochrane, J. (dissenting):

I agree with Mr. Justice Kellogg that the questions of negligence both of the plaintiffs and defendant were questions of fact. But I also think that not only those questions, but also the question of damages, were well decided by the City Court. The damage to the plaintiffs’ wagon was $27.25 and no more. Only one witness testified as to the amount of damage to the horse. He was acquainted with the horse in question and testified that its reasonable market value before the accident was $250. He was then asked a hypothetical question as to the value of a horse displaying such traits and characteristics as the plaintiffs’ witnesses testified that the horse in question developed after the accident, and in answer thereto stated that the general market value of such, a horse was'from $50 t.o- $75. He also testified that .the reasonable value of the services of the veterinary surgeon was $18. The testimony of this, witness was uncontradicted, although if untrue it was susceptible of contradiction. There was no question raised that plaintiffs’ method of proving these damages was incorrect. Assuming, as the City'Court was at liberty to assume, the truthfulness of the plaintiffs’ witnesses in describing the characteristics of the horse as developed after the accident, I do riot see how in fairness to the plaintiffs, it can be said that the judgment is excessive. The testimony of the only witness as to the amount of damages to the horse showed such damage to be not less than $175, which with the $18 for veterinary services and $27.25 for the wagon aggregated the amount of $220.25 damages awarded the plaintiffs. Defendant "was apprised by bill of particulars of the specific items' of damages claimed, but offered no evidence in reference thereto. Apparently he was content to permit that branch of the case to go practically by default. A party should not be permitted to suffer one feature of the case to remain unlitigated or only perfunctorily litigated and subsequently complain on appeal of the consequences of his own indifference. The City Court took at its face value the evidence submitted on the question of damages. According to such evidence the damages awarded were not excessive, but within the estimate of the only witness who .testified on that subject. The County Court may have believed that the damages awarded were excessive, but had no right nor have we any right to substitute belief for the judgment of the trial court supported as' it was by uncontradicted evidence, not inherently improbable.

I think, therefore, that the judgment of the Comity Court should be reversed and that of the City Court affirmed.

Judgment of the County Court modified as per opinion, and as modified affirmed, with costs to appellants to abide event of .a new trial to he had at a time to be specified in the order which, if not .agreed upon, to be settled by Chesteb, J.