Rose v. King

78 N.Y.S. 419

Opinion

PER CURIAM.

This case in its facts is in all respects similar to Miller v. King, which was before the general term and the appellate division six times, and the court of appeals once, and has been reported five times in all. 84 Hun, 309, 32 N. Y. Supp. 332; 88 Hun, 181, 34 N. Y. Supp. 425; 21 App. Div. 192, 47 N. Y. Supp. 534; 32 App. Div. 389, 53 N. Y. Supp. 123; 166 N. Y. 394, 59 N. E. 1114.

The only question presented on this appeal relates to the measure of damages. The learned trial judge instructed the jury that, assuming the contract of carriage between the railroad company and the plaintiff to have been broken, the receivers must make the plaintiff whole for the expense of going from his point of departure to his destination, and that that expense was what it would cost him to get there in the most feasible and reasonable way. We think that this was a correct statement of the rule applicable to the facts of the case, and was not subject to the criticism, of indefiniteness which was applied by the court of appeals to the request in Miller v. King, 166 N. Y. 394, 59 N. E. 1114. The evidence showed beyond all doubt that the plaintiff could have procured the conveyance to his destination by the expenditure of a sum not exceeding $1, and hence the trial court was fully justified in enforcing the measure of damages which it had laid down in instructing the jury by granting a new trial unless the plaintiff stipulated to reduce the award from $76, for which there was no warrant in the evidence, to the sum of $2, which certainly covered all possible actual damage sustained by the plaintiff. No special damages whatever were asked for in the complaint, nor were there any circumstances of humiliation or indignity which called for consideration by the jury.

It seems to us, therefore, that the order below was right, and should be affirmed.

Order affirmed, with costs.