Foley v. Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Co.

52 Misc. 183, 101 N.Y.S. 780

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1906
• Status: Published

Opinion

Davis, J.

The plaintiff recovered judgment for $472.44 for injuries to his automobile. Defendant’s northbound car ran into the rear of the automobile as it was also proceeding northward. The plaintiff’s damages, as allowed by the court, included an item of $150 for loss of use of automobile. This finding was based upon expert testimony as to the value of the use of an automobile like the plaintiff’s. There was no evidence to show that plaintiff used his automobile for any business purpose whatever. The inference from the evidence is that he used it for his pleasure and recreation. It does not appear that he hired any other vehicle to take its place. ■ Dnder the circumstances, we think it was error to allow plaintiff to prove this item of $150. It was highly speculative.

The judgment should be reversed and a new trial granted, with costs to appellant to abide the event, unless the plaintiff stipulates to reduce the judgment to $322.35, together with interest and costs below, in which case the judgment as modified will be affirmed, without costs of appeal.

•Gildebsleeve and Eitzgeeald, JJ., concur.

Judgment reversed and new trial granted with costs to appellant to abide event, unless plaintiff stipulates to reduce judgment to $322.35, with interest and costs below, in which case judgment as modified affirmed, without costs of appeal.