Behm v. Damm

91 N.Y.S. 735

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 complaint 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.