Everson v. Powers

60 How. Pr. 166

Opinion

J. F. Daly, J.

In his opinion delivered on reversing this judgment the chief judge, citing the cases which bore upon the rule of damages, concluded that the plaintiff might recover his actual loss down to the day of trial, and was not confined to damages suffered prior to the commencement of the action (Hochster agt. De Latour, 2 E. & Bl., 678, 71; Maguire agt. Woodside, 2 Hilt., 59; Toles agt. Hazen, Com. Pl. Dec., 1878; 57 How. Pr., 516; 18 Alb. Law Jour., 476). In Toles agt. Hazen the rule is stated somewhat differently, and damages were confined to those occurring at the commencement of the action. But Hochster agt. De Latour was cited as authority, as was Moody agt. Leverick (4 Daly, 401) and Dillon agt. Anderson (43 N. Y., 231, 237). Those cases do not confine plaintiff to the actual loss suffered at the time of the comrüencement of. the action, but unqualifiedly hold that the damages must be an indemnification for the loss sustained. In concurring in Toles agt. Hazen, judge Yah Hoeseh stated expressly that he regarded Maguire agt. Woodside as authority. In that case it was expressly held that the damages down to the day of trial might be recovered. Toles agt. Hazen may, therefore, be considered as approving the doctrine established by the cases cited by both judges who decided the ease. The judgment in that action was properly reversed, because the justice allowed a recovery for wages to accrue after the trial and down to the expiration of the period of service.

In this case the trial was had after the term of service expired, although the action had been brought during the term. The damages suffered by plaintiff had been ascertained and become fixed, and in accordance with the current of decisions in our own court plaintiff was entitled to recover to that extent.

The judgment should be affirmed, with costs.

Daly, Oh. J., and Yah Hoeseh, J., concurred.