Goodman v. McGonigle

128 N.Y.S. 65

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 16, 1911
• Status: Published

Opinion

LEHMAN, J.

The plaintiff sues for the conversion of 75 bags of flour seized by the defendant, a city marshal, under process issued against one Reblinker, from whom the plaintiff claims to have purchased the flour. In the complaint the value of the flour is placed at $500, but the plaintiff produced no evidence showing a higher value than $280. The only evidence admitted on behalf of the defendant for the purpose of showing value was the testimony of an expert, who bid at the public sale conducted by the marshal, that this flour was worth from $100 to $125. The trial justice charged the jury:

“You have on the one side the testimony that the goods were worth over $500. You have heard on the other side the contention that the goods were worth but $125. You are bound neither by the testimony of the plaintiff nor by the testimony of the defendant; but if you believe that the plaintiff is entitled to recover, you may find for him in such sum as you, gentlemen, consider to be the fair and reasonable value of the flour in question on the day it was seized.”

Thereupon the jury brought in a verdict for $300. The defendant specifically excepted to the charge that there was testimony “that the value of this flour was $500, was over $500.” Upon this exception I believe that the judgment should be reversed.

The trial justice also erroneously excluded all questions to show the publicity and fairness of the marshal’s sale, the number of bidders, and the price realized. This was error, and, in view of the verdict, apparently prejudicial error. Montignani v. Crandall Co., 34 App. Div. 228, 54 N. Y. Supp. 517.

Judgment should .be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.