Lockwood v. Dewey , 60 N.Y.S. 471 ( 1899 )

Per Curiam.

Taking the view most favorable to the plaintiff by accepting the finding of the jury that there was an express warranty of the capacity of the heater, the judgment rendered in his favor must nevertheless be modified as there is no adequate proof to sustain the award of damages. The jury found a verdict for the plaintiff in the sum of seventy-five dollars. The plaintiff’s expert, however, testified that it would cost only from six to eight dollars to repair the defect, and the experts of the defendant agreed with these figures. The recovery must, therefore, he limited to this sum. It is true that the plaintiff testified that he had to take his son from work to watch the heater during a period of three months, and that the son’s time “ was worth a dollar a day.” This testimony will not support the additional damage awarded. There is no proof what the son’s work was or whether he was paid for it; nor is there proof that the father was entitled to the proceeds of the work from which the son was taken, or that he actually paid anything to the son for watching the heater. There is in fact nothing in the record to overcome the presumption of gratuitous service on the part of the son. For aught that appears the son may have been taken away from work which he was performing for his father without any agreement for compensation.

The judgment should be reduced to eight dollars.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event unless the respondent consent to a reduction of the amount of recovery to eight dollars, in which event the judgment will be reduced to that sum and as so modified affirmed, without costs to either party.

Present: Freedman, P. J.; MaoLean and Leventritt, JJ.

Judgment modified and as so modified affirmed, without costs.