Summary
holding that proof of replacement costs less depreciation is a properly considered in determining the measure of damages for the loss of plates for illustrating book with no market value, but that plaintiff failed to show the reasonableness of amounts expended on the new plates which were a different type than the plates lost
Summary of this case from Balan v. RothschildOpinion
June 29, 1931.
Appeal from the Municipal Court, Borough of Manhattan, Ninth District.
Sullivan Cromwell [ Walter C. Lundgren of counsel], for the respondent.
Holley Oxenberg [ S. Joseph Oxenberg of counsel], for the appellant.
While ordinarily the measure of damages for the loss or conversion of personal property is the value of the property at the time of the loss or conversion ( McIntyre v. Whitney, 139 A.D. 557; affd., 201 N.Y. 526) this rule is not required to be applied as to articles such as those involved herein (plates for illustrating a book published by plaintiff) which are not salable as such. In such cases the actual value of the property to the person injured may be recovered. Proof of replacement cost less depreciation is evidence of such value. ( Barrington v. Offenbach, 163 N.Y.S. 423; Lovell v. Shea, 18 id. 193.) Here, however, there was proof indicating that the plates substituted for those lost were of a different type. Further, there was no proof of the reasonableness of the sums expended and there was no allowance for depreciation of the lost goods. The decision below was correct on the other questions involved in the case.
Judgment reversed and new trial ordered limited solely to the question of plaintiff's damage, with ten dollars costs.
All concur; present, LEVY, CALLAHAN and UNTERMYER, JJ.