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and 118 New York State Reporter the evidence. The proof was that the wagon, although not totally destroyed, was rendered valueless for future use. One of the plaintiffs testified that, although they had had the wagon repainted and put into shape, they had not been able to use it since the accident. For the purpose of estimating their damages, therefore, the vehicle may be. regarded as having been practically destroyed, in which event the measure of the defendant's liability is the value of the property at the time of its destruction. Sedgwick on Damages (8th Ed.) $ 40. The same rule is applicable as would apply in a case where the conversion of part of an article renders the rest worthless for all purposes. Under such circumstances, the value of the whole is recoverable. Walker v. Johnson, 28 Minn. 147,9 N. W. 632. There was no basis, therefore, for any award on account of the usable value of the substituted wagon, and the recovery should be reduced by deducting $54 therefrom.

Judgment modified by deducting therefrom the sum of $54, and, as modified, affirmed, without costs of this appeal to either party. All concur.

GRUBER V. JANNS et al. (Supreme Court, Appellate Term. November 18, 1903.) 1. REPLEVIN-POSSESSION UNDER EXECUTION-REGULARITY-PRIMA FACIE CASE.

A prima facie case of regularity of possession of goods by a marshal is made by admission that he holds them pursuant to an execution issued on a judgment rendered. Appeal from Municipal Court, Borough of Manhattan, Fifth District.

Action of replevin by Bernard Gruber against Joseph J. Janns and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

A. B. Schleimer, for appellant.
Abraham Brekstone, for respondents.

BISCHOFF, J. The defendant Janns, a city marshal, obtained possession of the goods by levy under a warrant of attachment, and now holds them, according to a stipulation or admission of record upon the trial below, "pursuant to an execution issued out of the Eleventh District Municipal Court on the 4th day of August, 1902, upon judgment rendered" in the action in which the attachment issued. This admission suffices prima facie for the regularity of the defendant's claim to possession, and, while it would appear that there was some contention as to the proper form of a paper purporting to be the judgment, the record before us does not present the contents of the paper; and we have no ground for holding, with the appellant, that the defendant's possession is founded upon proceedings which might be assailed as irregular or void. Not only is it admitted that the execution was issued upon a "judgment rendered," but the plaintiff's attorney seems to have admitted the fact of the "entry" of this judgment in the course of his offer of the execution in evidence, and

there is nothing before us to show any invalidity in the judgment. See Risk v. Uffelman, 7 Misc. Rep. 138, 27 N. Y. Supp. 392.

The defendant's possession being justified by the only proof submitted, so far as we may hold, the judgment appealed from should be affirmed, with costs. All concur.

M. S. HUEY CO. V. ROTHFELD.

(Supreme Court, Appellate Term. November 18, 1903.)

1. EVIDENCE-CONCLUSION OF WITNESS.

On the issue whether a foreign corporation was doing business in the state during a specified period, the conclusion of an agent of the cor

poration that it was, was not evidence of that fact. 2. APPEAL-PRESUMPTIONS.

Where a judgment may have been rendered on eitber of two issues, one of which was insufficiently established, the court on appeal will not assume that it was based on the other issue..

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

Action by the M. S. Huey Company against Isaac Rothfeld. From a judgment for defendant, plaintiff appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

M. G. Gonterman, for appellant.
A. B. Schleimer, for respondent.

BISCHOFF, J. The action was for goods sold and delivered, and the determination for the defendant may have proceeded upon the court's acceptance of the evidence given to prove a justified rejection of the goods, or upon the affirmative defense that the plaintiff, a foreign corporation, was not entitled to maintain the action for failure to procure the statutory certificate. As to this defense, the issue was whether the plaintiff was doing business within the state when the claim in suit arose, and to prove the affirmative the defendant called an agent of the plaintiff, and, over objection, was permitted to ask him whether the corporation was "doing business within the state during the appropriate period." The witness answered that it was, and it appears from the rulings that the answer was deemed to be proof of the fact.

This evidence was the witness' conclusion upon the ultimate fact in issue, and the question substituted the opinion of the witness for the opinion of the trial court upon the evidentiary facts which should have been presented to the court. Jaton v. Brentwood, 11 Misc. Rep. 325, 32 N. Y. Supp. 131. Doubtless a question like this would be unobjectionable in a case where the fact of doing business, in the usual understanding of the term, merely had a bearing upon some issue, and was not itself the issue to be determined, but here the ultimate fact of doing business was to be proven by evidence of what was done, not by the conclusions of a witness. We cannot assume

and 118 New York State Reporter that the judgment was rendered upon some ground not involving the affirmative defense, and, for the error pointed out, there must be a new trial of the cause.

Judgment reversed and new trial ordered, with costs to appellant to abide the event. All concur.

ROSENBLUM v. RILEY. (Supreme Court, Appellate Term. November 18, 1903.) 1. LANDLORD AND TENANT-FAILURE TO GIVE POSSESSION-DAMAGES.

In an action for breach of a lessor's agreement to give possession, the measure of the plaintiff's general damage is the difference between the

rent reserved and the rental value of the premises. 2. SAME-DAMAGES-EVIDENCE.

In an action for breach of a lessor's agreement to give possession, evidence of the rent paid by the lessee for other premises claimed to be of a similar character is incompetent. Appeal from Municipal Court, Borough of Manhattan, Second District.

Action by Michael Rosenblum against Edward Riley on agreement to lease property. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

Nathaniel Cohen, for appellant.
Myer Greenberg, for respondent.

BISCHOFF, J. The measure of the plaintiff's general damage was the difference between the rent reserved and the rental value of the premises which were the subject of the lease. Dodds v. Hakes, 114 N. Y. 265, 21 N. E. 398.

The only indication of an excess of rental value over the agreed rent is sought to be afforded by proof of the rent paid by the lessee for other premises claimed to be of a similar character, and that the justice deemed this evidence to afford a basis of damages is apparent from the judgment rendered. It is the established rule in this state that damages founded upon real estate values cannot be proven by comparison between the premises in question and other premises, the policy of the rule being to avoid collateral issues, such as every such comparison would involve. Matter of Thompson, 127 N. Y. 463, 28 N. E. 389, 14 L. R. A. 52; Huntington v. Attrill, 118 N. Y. 378, 23 N. E. 544; Jamieson v. Ry. Co., 147 N. Y. 322, 41 N. E. 693. The reception of this evidence was continuously resisted by the defendant, and the judgment founded upon it is well assailed.

Final order reversed and new trial ordered, with costs to appellant to abide the event. All concur.

11. See Landlord and Tenant, vol. 32, Cent. Dig. $ 453.

WRIGHT V. LEVY. (Supreme Court, Appellate Term. November 18, 1903.) 1. EARNEST MONEY DEPOSIT-RECOVERY.

Where plaintiff, who had deposited money as earnest of her performance of an agreement to purchase from defendant a contract for the sale of real estate, came on the day fixed for performance to his office, well within usual business hours, but he was not present and the neces. sary papers were locked up, and when she came the next day he told her the deposit was forfeited for failure to attend the day before, she

is entitled to recover the deposit. Appeal from Municipal Court, Borough of Manhattan, Eighth District.

Action by Adelaide V. Wright against Mitchell A. C. Levy to recover money deposited as earnest for the performance of a contract. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

B. F. Feiner, for appellant.
Wm. A. Montague, for respondent.

BISCHOFF, J. The question whether the plaintiff knew or did not know of the requirement for the payment of taxes, as embodied in the contract of sale which the defendant had agreed to assign to her, is not involved upon this appeal. The recovery of the deposit of $250 is fully supported by evidence that the plaintiff, on the day fixed for the performance of the agreement with the defendant, came to the latter's office prepared to close the matter, but that he was not present and the papers were locked in the safe, a fact which made it impossible for performance to be tendered in his behalf at that time. The next day plaintiff called again, and was informed by defendant that the deposit was forfeited for her failure to attend the day before.

According to thoroughly credible testimony, the plaintiff's attendance was well within the usual business hours contemplated by the agreement, and the defendant's repudiation of the contract was not justified, and placed him clearly in default. The parties never reached a point where the potential disagreement as to the terms of the contract to be assigned could affect their respective rights. The defendant simply declined to observe his agreement, and the recovery of the deposit was justified by the facts.

Judgment affirmed, with costs. All concur.

COSGROVE v. INTERURBAN ST. RY. CO.

(Supreme Court, Appellate Term. November 18, 1903.) 1. STREET RAILWAYS-INJURY TO TEAMS-CONTRIBUTORY NEGLIGENCE-FAILURE

TO LOOK.

One driving a milk wagon at a jog trot, the horse being under perfect control, was guilty of contributory negligence in crossing a street car track, when he had seen the car standing some 30 feet from where it struck his horse, without again looking before attempting to cross.

nue.

and 118 New York State Reporter Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Michael Cosgrove against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

Henry A. Robinson (J. Ralph Hilton and William E. Weaver, of counsel), for appellant.

Carneluis F. Collim, for respondent.

BLANCHARD, J. The plaintiff sues for the value of a horse killed as the result of a collision between the horse, which was attached to a milk wagon driven by the plaintiff, and one of the defendant's cars. The accident happened at Thirty-Fourth street and Sixth ave

The plaintiff, according to his own story, was guilty of contributory negligence. The wagon he was driving was an ordinary covered milk wagon, open in front and in the middle on the sides. The plaintiff was driving along the west side of Sixth avenue towards Thirty-Fourth street. When about 30 feet north of Thirty-Fourth street, he looked, and saw the car which struck him—a west-bound Thirty-Fourth street car-standing at the northeast corner of Sixth avenue and Thirty-Fourth street. This was about 30 feet from where the car struck the horse. The plaintiff admits he did not look or see the car again until it struck the horse. The horse was going at a "jog trot,” not over five miles an hour, and was under perfect control, and could have been stopped instantly. When struck, the horse had just placed his forefeet over the first rail. Such is the plaintiff's story as he himself relates it. Having looked in the direction in which the car proceeded but once, the plaintiff failed in his very evident duty in proceeding to cross the track without again looking. From the nature of the accident as related by the plaintiff, it is quite evident that, had he taken even ordinary precautions, he might have avoided the accident. The plaintiff was clearly guilty of negligence contributing to the occurrence of the accident, and the judgment in his favor cannot be permitted to stand. It must be reversed, and a new trial ordered, with costs to appellant to abide event.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.

RAN V. TORCHIANI.

(Supreme Court, Appellate Term. November 18, 1903.) 1. PAYMENT-EVIDENCE.

The inference, from repayment by plaintiff of loans made by defendant without any deduction of plaintiff's claim, that such claim had been

paid, is not cogent, where the repayment was in work. Appeal from Municipal Court, Borough of Manhattan, Second Dis

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