Mencaccy v. Studebaker Corp. of America

Full title: MENCACCY v. STUDEBAKER CORPORATION OF AMERICA

Court: Appellate Term of the Supreme Court of New York, First Department

Date published: Dec 31, 1923

202 N.Y.S. 718 (N.Y. App. Term 1923)

Opinion

December 31, 1923.

Appeal from Municipal Court, Borough of Manhattan, First District.

Action by Fernando C. Mencaccy against the Studebaker Corporation of America. From a judgment for plaintiff, after trial by the court without a jury, defendant appeals. Reversed, and new trial ordered.

Hawkins, Delafield Longfellow, of New York City (E.J. Dimock and B.L. Visscher, both of New York City, of counsel), for appellant.

Archibald Palmer, of New York City (David B. Tolins, of New York City, of counsel), for respondent.

Argued May term, 1923, before GUY, WHITAKER, and MULLAN, JJ.

PER CURIAM.

If the injury to the car was not so great as to make its reparation, or restoration to the condition it was in immediately before the injury, unreasonable, in that it necessitated an outlay out of proportion to the condition and value of the car before the injury, the cost of reparation was competent evidence of the damage (plus the value of the use during the period required for the making of repairs, and plus the difference, if any, between the value of the car before the injury and after the making of the repairs).

The evidence offered by the defendant as to the value of the car before the injury should have been received, as it was not only competent upon the question whether it was reasonable to order the repairs, but would have been part of the proper proof in support of the correct measure of damage (difference in value before and after) applicable in case of a finding that it was unreasonable for plaintiff to cause the repairs to be made. See Hartshorn v. Chaddock, 135 N.Y. 116, 31 N.E. 997, 17 L.R.A. 426; Moore v. Metropolitan St. R. Co., 84 App. Div. 613, 82 N.Y. Supp. 778; Childs v. O'Lary, 174 Mass. 111, 54 N.E. 490; Southern Ry. in Kentucky v. Kentucky Grocery Co., 166 Ky. 94, 178 S.W. 1162. The question whether a deduction should be allowed to the defendant of any excess of value of the car as repaired over the value before injury is not before us, and so we do not pass upon it. See Cadwell v. Town of Canton, 81 Conn. 288, 70 Atl. 1025, and Southern Ry. in Kentucky v. Kentucky Grocery Co., supra, holding that such an allowance should be made, and Moore v. Metropolitan St. R. Co., supra, holding that reparation cost "far in excess" of the value before injury is not recoverable. And see, generally, 17 C.J. 877, and cases there cited.

Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event.