Orr vs. The Mayor &c. of the City of New York

Orr vs. The Mayor &c. of the City of New York. It is not necessary that a witness, in speaking of value, should speak only from actual observation. Many cases may occur where, from the destruction of personal property, no witness can be produced who has had an opportunity to examine and be conversant with the value. In such a case, the rule which allows the next best evidence to be produced applies; and the value may be ascertained from persons conversant with property of that nature, after they are made acquainted with its condition by the testimony of others. Title, and possession or right of possession, of personal property, is all that is required to enable the holder to claim the'-property or its value. The plaintiff and the firm of which he was a member, had purchased personal property (a floating elevator, with its boiler, engine and machinery,) and advanced the whole purchase money, under an agreement to convey it to B., on his paying the money advanced. In an action under the statute of April 13, 1855, against the city of New York, to recover for the destruction of the property by a mob; Held that the plaintiff having the title, and the right to the possession of the property, this gave him a sufficient interest to enable him to recover for its value. The old rule, which excluded interest, in such cases, has been so far modified as to allow the jury to give interest, if they think justice requires it. APPEAL, by the defendants, from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the judge’s minutes. The action was founded on the statute of April 13, 1855, by which compensation was given to parties whose property should be destroyed by mobs or riots, by action against the city or county in which the property was situated. (Laws of 1855, ch. 428, p. 800.) The complaint alleged the destruction of the plaintiff’s floating elevator, which, at the time of its destruction, was in the Atlantic basin, on the Hew York side of the boundary line, between the counties of Hew York and Kings. The answer was a general denial. The plaintiff originally brought his suit against the city of Brooklyn, and recovered a verdict, which was affirmed at the General Term, but reversed by the Court of Appeals, on the ground that the Atlantic basin, where the elevator lay at the time of its destruction, was within the boundaries of the county of Hew York. (See Orr v. City of Brooklyn, 36 N. Y. 661.) The plaintiff was a member of the firm of David Dows & Co., having an interest in that firm of one-seventh. The firm of David Dows & Co. negotiated the purchase of the elevator in question, at the request of and for James Barber, and advanced the money for the purchase, and for bringing the elevator from Oswego to Hew York. Hone of that money had been repaid to that firm by Mr. Barber. On the trial, evidence was given of the circumstances of the destruction of the elevator and of its value. Jay T. Phillips, a witness for the plaintiff, testified as follows: “ I am a millwright and mechanical engineer ; it is part of my business to design, superintend and erect mill-work. I have built elevators and made estimates and procured estimates for them. In 1863 I was working at the Atlantic dock: I saw the machinery that went on board of this elevator from two to four times a day, sometimes I used to go home to my dinner and I would pass by it then. Q. Will you give me an estimate of the value of the machinery there, exclusive of the hull % A. Some of it was on board, I did not see that. Q. What part of it did you not see % A. I presume I saw the most of it, except the engine and boilers; I could not say I saw them. While they were building the tower the part that was then exposed was in sight of anybody that passed along the dock. The other work in the course of taking down the tower had to be removed. Q. You saw all except the engine and boilers ? A. Probably the most of it, except the engine and boilers. Q. What would be your estimate of the value of the machinery there, which you saw, exclusive of the hull ?” This question was objected to by the defendant’s counsel, the objection overruled, and exception taken. Witness: “ Shall I estimate the whole machinery together % Counsel: Yes, sir. What you saw, and including the engine and boilers, from the description in the testimony of the witness, Bradshaw,” The defendants’ counsel objected to the question, upon the ground that the witness could not be allowed to give evidence as to the value of the engine and boilers, which he had not seen, or evidence as to value based upon the description of it by witnesses. The judge decided that, as an expert, the witness might estimate the value of this machinery which he had not seen, from the description of it in the testimony in this case, which he had heard, and that the question might be asked upon that. The defendants’ counsel excepted. The question was then put to the witness, what would be his estimate of the value of the machinery which he saw and the engine and boilers, from the description in the testimony which he had heard. The defendant objected to the question, upon the ground that the witness could not be allowed to give evidence as to the value of the engine and boilers which he had not seen, or evidence based upon the description given by witnesses. The court overruled the objection, and the defendants, by counsel, excepted. “A. Twenty-six to twenty-eight thousand dollars.” At the close of the testimony on the part of the plaintiff, the defendants moved for a nonsuit, upon the following grounds: “1st. That the plaintiff had not the property in this elevator which enables him to maintain the action; that the most favorable light in which he can be regarded is merely that of a mortgagee of the property. That he took the legal title, not for his own benefit, but for that of Mr. Barber, and whatever he recovers in this action would go to the benefit of his debtor, Mr. Barber. The plaintiff’s own evidence establishes that he was not the owner of the property, but was merely the mortgagee of it; that he was not in possession of it at the time it was destroyed, and" never was in possession of it; and the only party who can maintain an action is Wm. B. Barber. 2d. That the. property was in the jurisdiction of the county of Kings, and not "within that of the county and city of New York. 3d. That if the plaintiff be entitled to recover at all, (it being a statutory action,) he cannot recover more than the amount of his interest in the property.” The court refused to dismiss the complaint on all as well as upon either of the foregoing grounds ; and the defendants excepted to each and every of such refusals of the court to dismiss the complaint. The court directed the jury that the plaintiff was entitled to a verdict, and left to them the question of value, and declined to charge the requests propounded by the counsel for the defendants. The jury found a verdict in favor of the plaintiff, for $53,953.48. A. J. Vanderpoel and Richard O’Gorman, for the appellants. C. Van Santvoord, for the respondent. [MAJORITY — By the Court, Ingraham, P. J.] By the Court, Ingraham, P. J. The main question in this case was decided against the defendants in 36 N. Y. 661. Although they were not parties to that action, still the decision in that case would undoubtedly control the court in the present action. The only questions, therefore, which it is necessary for us to examine are those raised upon the trial as to the admission of evidence, and as to the title to the property. The action was to recover the value of an elevator, destoyed in a riot. One witness—Phillips—testified that he had seen the elevator, and the machinery, most of it, except the engine and boiler. He was allowed to testify as to the value from his knowledgé of the machinery and from the description of the engine and boilers, as given by another witness. To this the defendants objected. It ismot necessary that a witness in speaking of value, should only speak from actual observation. Many cases may occur where, from the destruction of personal property, no witness can be produced who has had an opportunity to examine and be conversant with the value. In such a case, the rule which allows the next best evidence to be produced, applies; and the value may be ascertained from persons conversant with such machinery, after they are made acquainted with its condition by the testimony of others. (36 Barb. 644.) In this case, also, the witness was acquainted with everything about the elevator, except the engine and boiler; and there was no good reason why he should not testify as to value. But even if the objection was a valid one, it would not be material, in this case. The witness testified to a sum less than was stated by other witnesses, and his estimate was not adopted by the jury. It is evident that the verdict was not based on Ms testimony. The other objection was that the plaintiff was not the owner of the elevator, but a mere mortgagee, and could therefore only recover the amount due him. From the evidence, it appears that the title was in the plaintiff; that he and the firm to which he belonged had advanced the whole purchase money under an agreement to convey to Barber, on his paying the money advanced. The plaintiff had the title, and the right to the possession. TMs gave Mm a sufficient interest to enable him to recover for its value. If Barber had never availed himself of Ms right to purchase, the property would have remained the property of the plaintiff. The rule as to title to personal property differs from that as to real estate. In the former, title and possession, or right of possession, is all that is required to enable the holder to claim the property, or its value. There might have been a more serious question if the objection had been that the other members of the firm should have been made plaintiffs; but that objection was not taken, either in the answer or on the trial. We see no error as to the rule of damages. The old rule, which excluded interest in such cases, has been so far modified as to allow the jury to give interest if they think justice requires it. This was all that was done in this case. [First Department, General Term, at New York, November 4, 1872. Ingraham and Leonard, Justices.] Judgment affirmed.