Schwartz v. Schendel

Giegerich, J.

It is maintained that no appeal lies to this Appellate Term from a judgment of the Municipal Court of the city of Hew York, entered by default; but in Hurry v. Coffin, 11 Daly, 180; and again in Spiero v. Metropolitan Street Railway Co., 14 Misc. Rep. 21, it was expressly held by the General Term of the Court of Common Pleas, that an appeal may be taken.

The justice fixed the value of the goods claimed to have been injured by the overflow at $200. The return, however, fails to disclose any competent evidence on which to rest such determination.

The only testimony touching the nature and extent of the damage, claimed to have been sustained by the defendant’s negligence, was given by the husband of the plaintiff, who testified: “ Q. Did the water coming from the defendant’s premises do any damage to any of the goods belonging to the plaintiff in this action? A. Yes, sir; quite considerable. Q. What was the value of the goods damaged? A. I have given the value of the goods at a rough estimate, $200, but they were worth, that is the market price of the goods was more than that and it costs us more than that. Q. Was that the price it would cost to replace the goods on the day in question? A. Yes, sir.”

As to the nature and quantity of the goods; the extent of the injury thereto, if any; and the kind of business the plaintiff was engaged in, and her husband’s connection therewith, if any, were not shown, the former was entitled, at most, to nominal damages only for the alleged overflow. Connoss v. Meir, 2 E. D. Smith, 314; Whitmark v. Lorton, 15 Daly, 548.

There were other grounds urged for a reversal of the judgment, but, in view of the conclusion above reached, it will not be necessary to consider them. The judgment should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Beekman, P. J., and Gildersleeve, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.