Stoddard v. Brazell , 99 N.Y. Sup. Ct. 607 ( 1895 )

PARKER, J.

It is impossible to determine from the evidence just how the justice made up his judgment of $60.49 damages against the defendant, but it seems very clear that no such amount is warranted by the proofs before him. The plaintiff swears that on August 25, 1891, there was a balance due her of $84.04; and she put in evidence Exhibit A, as showing the items of debit and credit upon which she based that claim. Conceding that all such items are correct, and properly proven, yet that balance falls short of the amount allowed by the justice, and his right to add to that balance must be found in the plaintiff’s evidence, wherein she claims that there were certain other items, not included in that account, and to which she was entitled. Upon none of these additional items, save, perhaps, the item of interest, has she made proof sufficient to entitle her to recover for them. Thus no evidence is given of any fact showing that defendant owned $8.80 for surplus paid her for use of her premises. The only evidence is that a charge was made for that amount, which, of course, is no proof of a liability to pay it. Also, the plaintiff shows no facts whatever tending to prove the defendant liable for any injury her horse may have sustained in defendant’s barn. There is a total failure of any evidence of negligence, or of liability for such injury, yet she has added an item of $12 for such damage. So the evidence does not show that the defendant had anything whatever to do with the pitcher broken at plaintiff’s house, and for which she has charged $5. Nor could she be charged 90 cents for a jar left by plaintiff at her house. It was left there with butter in it, and there is nothing to show but that it is still awaiting plaintiff’s call for it, or, indeed, that it was not sold with the butter. As to the jar and the whip and the rubbers and measure and bags, there is no proof that defendant took them; nothing whatever to connect her with their loss; nothing to show that she was under the slightest obligation to protect them. The item of $3 for keeping defendant’s family and horse at plaintiff’s house is not sufficiently proven to show any liability on defendant’s part to pay it. The plaintiff merely swears that she made the charge, and that it was worth that to keep them. She does not tell how many there were, how long they were kept, nor any fact upon which she bases her conclusion that it was worth that sum. Nor does she give any fact showing why defendant, a married woman living with her husband, should pay for the keep of his family. The credits which the plaintiff allows against these additional items, and which are not on her bill, Exhibit A, amount to $6.60. These stand conceded as items for which she should have been credited. They are so much of defendant’s counterclaim, which plaintiff concedes to be correct. Clearly, giving defendant the benefit of these credits, there are no items proven that should run up the balance of $48.49. We do not attempt to modify this judgment by adjusting the account between those parties. The evidence is very conflicting as to defendant’s counterclaims, and as to the amount she claims to have paid upon'the account, and for which she has received no credit. Several items of the account, Exhibit A, are also disputed by her, and the proof as to the accuracy of the account is also very slight on plaintiff's part. Neither does it very clearly appear why defendant, and not her husband, should be liable for the items of such account. We think the merits of the case can be more certainly determined by a new trial, and, since the judgment appealed from is evidently not warranted by the proof, it must be reversed. The judgment of the justice and that of the county court reversed, with costs. All concur.