Opinion
November, 1907.
William E. Weaver, for appellant.
William Bondy, respondent in person.
A car operated by the defendant collided with the plaintiff's automobile, and this action was brought to recover the damages sustained by reason of such collision. Upon the question of the negligence of the defendant and freedom from negligence of the plaintiff, there was a conflict of evidence. The court below found in favor of the plaintiff. The appellant urges that the judgment is against the weight of evidence. An examination of the record does not support such contention. The judgment rendered was for the sum of $500, the extreme limit for which the court had jurisdiction. The items of damage proven were $148 for repairs to the machine, and the sum of $69.70 for a new tire. The difference between the total of these two items and the amount of the judgment is for the usable or rental value of the automobile, which a witness testified was $200 per week for a period of three weeks while the same was being repaired. The plaintiff testified that he was the owner of the machine, and that every time it was taken out it was used for "healthy purposes and pleasure." The proof as to rental value was objected to and a motion was made to strike it out as irrelevant, immaterial and not the proper measure of damage, which motion was denied. It is urged upon this appeal that such damages are not legally recoverable upon the facts established in this case. That the use of an automobile may, upon being shown to have been used for the purposes of business or as a source of profit, have a marketable value, or a value capable of being estimated without indulging in mere conjecture, is undoubted, but nothing of the kind was proved in the case at bar. The plaintiff so far as appears did not incur any expense in hiring a substitute for the three weeks his machine was in the repair shop, nor is there any evidence that it was a source of profit or income to him. The evidence as to the rental value was limited to this particular machine, and it was not shown to be an "article in constant and daily use whose usable value being known and readily ascertained constitutes a proper element of damages." Volkmar v. Third Ave. R.R. Co., 28 Misc. 141. None of the cases cited by respondent upholds his contention. In those cases the actual reasonable outlay for the rent of articles in lieu of the injured articles was shown, as, for example, in Wellman v. Miner, 19 Misc. 644, the plaintiff proved the amount paid for a carriage in his business while his damaged one was undergoing repairs; and in Moore v. Metropolitan St. R. Co., 84 A.D. 613, it was established that the wagon injured was used in plaintiff's business. The circumstances disclosed by the testimony in the case at bar are somewhat similar to those in Foley v. Forty-second St., etc., R. Co., 52 Misc. 183, where this court held the plaintiff was not entitled to recover for alleged damages upon such proof.
Judgment reversed and new trial ordered, with costs to appellant to abide the event, unless plaintiff will stipulate within five days to reduce the judgment to $217.70 and appropriate costs in the court below, in which event, the judgment as so modified will be affirmed, without costs of this appeal.
GILDERSLEEVE and LEVENTRITT, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulate within five days to reduce judgment to $217.70 and appropriate costs in court below, in which event judgment as so modified affirmed, without costs of this appeal.