Argued March 17, 1873
Decided June term, 1873
Chas. E. Soule for the appellant.
David McAdam for the respondent.
The points taken before us that the verdict was against the evidence, and that the damages are excessive, cannot be considered here.
Upon the trial the defendant offered to show upon what ground the Supreme Court reversed the adjudication of the justice in the summary proceedings, and the offer was overruled, and an exception was taken by the defendant. In this there was no error. It was wholly immaterial upon what ground the adjudication was reversed. The reversal simply placed the parties, as to the premises in question, where they were before the proceedings were instituted. The adjudication, upon whatever ground it was reversed, was wiped out, and no longer estopped either party. The reversal, however, gave the plaintiff, by the express provisions of the statute (2 Edmonds, R.S., 533), a right of action to recover any damages which he sustained by reason of the summary proceedings.
It only remains to be considered whether the judge at the trial erred in his charge or in his refusal to charge as requested by the defendant, and whether the judgment, as modified, should be reversed for such error. On the trial the plaintiff was the only witness as to the amount of the damage to his property, and he estimated it in items amounting to $4,645. He also testified, without objection, that he lost a large amount by the breaking up of his business, in the profits which he supposed he would have made. The judge charged the jury that the plaintiff was entitled to recover the damage done to his property, and also the damage done to his business. Defendant excepted to so much of the charge as left it to the jury to consider and give damages for any loss of plaintiff's business, and also requested the judge to charge that the plaintiff could not recover for the loss of prospective profits. This request was refused, and the defendant excepted. The judge manifestly erred in the charge as made, and in the refusal to charge as requested. But, as the judgment was modified at General Term, the defendant is not harmed by these errors. The judgment was reduced so as give the plaintiff only the damage to his property. It is said that it is not clear that the jury put the same estimate upon the damages to the property which the plaintiff did in his evidence. They must have done so, as there was no evidence showing that the damage to it was less than plaintiff claimed. There can be no question that the General Term had the right to make the conditional reversal or to modify the judgment appealed from. It is a right for the exercise of which there are many precedents. Sear v. Conover, 3 Keyes 115; Graham Wat. on New Trials, 1162, and cases cited.
I have thus considered all the questions presented for our consideration, and conclude that the judgment should be affirmed with costs.
All concur. Judgment affirmed.