Hampton & Branchville Railroad v. Sizer , 71 N.Y.S. 990 ( 1901 )

Per Curiam.

The record in this case shows that the plaintiff was the owner of the lumber in question, and entitled to its possession as against the defendants, in whose possession it was at the time of the commencement of the action.

The action is to recover possession of personal property, and for damages for its unlawful detention, and we are satisfied from the evidence in the case that the plaintiff is entitled to that relief. On the trial, however, against the objection of the defendants, the plaintiff was permitted to prove as damages expenses incurred as railroad fares by its president on several trips made to New York, occasioned by reason of the pendency of this litigation, and amounting to the sum of $240, together with an expense incurred for counsel fees herein amounting to $304, and the jury, by their verdict, have specifically allowed the sum of $304 as damages for lawyers’ fees, and $240 as damages for railroad fares. We are of'opinion that the plaintiff is not entitled in this action to either one of those items, and that the judgment must be modified accordingly. Under the complaint in this action the plaintiff is entitled to recover possession of the property sued for, or if possession thereof cannot be had, then its value at the time of the trial, together with damages for its unlawful detention, and no more; and in the absence of other evidence of such damages, legal interest upon the value will be the amount thereof.

It follows that the judgment must be reversed and a new trial ordered, with costs to appellants, to abide the event, unless within ten days the plaintiff stipulates tó reduce the judgment entered herein by deducting therefrom the sum of' $304 allowed as damages for lawyers’ fees, and $240 allowed as damages for railroad fares, with the extra allowance thereon of five per cent., in which event the judgment and order appealed from are affirmed, without costs.

Present: Fitzsimons, Ch. J., Hascall and O’Dwyer, JJ.

Judgment reversed and new trial ordered, with costs to appel- ' lants to abide event, unless within ten days plaintiff stipulates to reduce the judgment by deducting therefrom $304 allowed as damages for lawyers’ fees, and $240 allowed as damages for railroad fares, with extra allowance of five per cent., in which event judgment and order affirmed, with costs.