Nechamkin v. Kennedy

Guy, J.

On or about June 6, 1913, plaintiff’s automobile was damaged by the pole of a two-horse truck, which it was claimed belonged to the defendant, James Kennedy, colliding with the automobile, and the defendánt, James Kennedy, appeals from a recovery against him in favor of plaintiff.

On the conflicting evidence the jury was authorized to find that the truck belonged to the appellant and that the driver was employed by the appellant and acting within the scope of his employment at the time of the accident.

Against the objection of the appellant the trial court allowed plaintiff to introduce evidence of the cost to the plaintiff to hire not only an automobile but also a chauffeur for the time during which it was claimed plaintiff’s automobile was being repaired. On no theory could the amount paid by plaintiff for a chauffeur to drive a machine hired by him be an element of damage in this case. Further, under the order made in this action requiring plaintiff to furnish a bill of particulars he was directed to state in detail the damages claimed, and in his bill the only damages stated were damages to the automobile; and it was accordingly error to admit evidence of the cost of hiring an automobile.

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event, unless the respondent will stipulate within ten days after service of a copy of the order entered hereon in the City Court with notice of entry thereof to reduce the judgment to the sum of $351.88, in which event the judgment as so reduced is affirmed, without costs of the appeal to either party.

Bijtjb and Philbin, JJ., concur.

Judgment reduced and as so' reduced affirmed, without costs of appeal.