Behm v. Damm

Appellate Terms of the Supreme Court of New York

Behm v. Damm

91 N.Y.S. 735

CourtAppellate Terms of the Supreme Court of New York

DecidedJanuary 17, 1905

StatusPublished

Cited by2 cases

This text of 91 N.Y.S. 735 (Behm v. Damm) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Behm v. Damm, 91 N.Y.S. 735 (N.Y. Ct. App. 1905).

Pincite

Opinion

PER CURIAM.

There was sufficient conflict of evidence to require submission to the jury. The defendant’s position was that of janitress or servant, and the landlord had an undoubted right at any time to dismiss her, and, if she refused to remove her furniture, to put it out. This, however, did not include the right to forcibly destroy or- injure the furniture. If her testimony is to be believed, the defendant Damm committed a wanton trespass. The [736]*736complaint against the other defendants was properly .dismissed, hut as to Damm we think it should have been left to the jury to say whether he gave plaintiff reasonable opportunity to remove her goods before he broke into the wall. Her evidence as to damage was imperfect, but defendant did not raise that question, or the defects might have been supplied. In the absence of better proof, evidence of the cost of the articles, with further evidence of the amount of use they had had, is some evidence from which the jury can estimate damage.

As to Damm, the judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. As to the other defendants, the judgment should be affirmed.

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PER CURIAM.

There was sufficient conflict of evidence to require submission to the jury. The defendant’s position was that of janitress or servant, and the landlord had an undoubted right at any time to dismiss her, and, if she refused to remove her furniture, to put it out. This, however, did not include the right to forcibly destroy or- injure the furniture. If her testimony is to be believed, the defendant Damm committed a wanton trespass. The [736]*736complaint against the other defendants was properly .dismissed, hut as to Damm we think it should have been left to the jury to say whether he gave plaintiff reasonable opportunity to remove her goods before he broke into the wall. Her evidence as to damage was imperfect, but defendant did not raise that question, or the defects might have been supplied. In the absence of better proof, evidence of the cost of the articles, with further evidence of the amount of use they had had, is some evidence from which the jury can estimate damage.

As to Damm, the judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. As to the other defendants, the judgment should be affirmed.

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Bluebook (online)

91 N.Y.S. 735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/behm-v-damm-nyappterm-1905.

Opinion

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