Kraut v. Morgan & Brother Manhattan Storage Co.

Nunez, J. P. The facts are succinctly stated in the dissent. We are in unanimous agreement that the determination of the jury in plaintiff’s favor on the first cause of action for the value of the 19 pieces of Russian enamel works of art which were not recovered should prevail. Plaintiff’s remaining cause of action was for his expense in recovering the hulk of the stolen items. And while he has a cause of action for such relief (Jones v. Morgan, 90 N. Y. 4), [20] he was under the obligatory duty to make a reasonable effort to minimize his damages (Norske Ameriekalinje v. Sun Print. & Pub. Assn., 226 N. Y. 1, 7, 8). Plaintiff and his friend, Mr. Keller, testified that the sum of $71,000 was paid by plaintiff to an intermediary for the return of his property. The jury awarded plaintiff $45,000. The dissenters hold that if plaintiff is entitled to recover anything on this cause, he is entitled to the full amount expended, that it is a compromise verdict and cannot stand. We disagree. The award of $45,000 was proper under the court’s charge to which no exception was taken. The jury was instructed that if it found that the reward payment ‘ ‘ was reasonable in light of the fair market value of the items ” plaintiff may recover. And upon the rendition of the verdict counsel moved to set aside the verdict as being ‘' far in excess of the proof that was submitted * * * and should be further reduced.” No objection was made that it was a compromise verdict. The learned trial court properly denied the motion, observing that the jury ‘ ‘ had a right to decide what would be a reasonable reward, under the circumstances, particularly in view of their finding of value.” The dissent further faults the verdict as mathematically opposed to the evidence on the jury’s other finding, and points out that as there were approximately 281 pieces returned and the jury found that 19 pieces completely undifferentiated from them had a value of $26,000, the contention that the jury may have found the value of the pieces returned was only $45,000 cannot be sustained. The statement that the 19 pieces are completely undifferentiated from those returned flies in the face of the record which shows that the value of the items varied from a $65 mayonnaise set to an enamel clock valued at $7,500. That the amount paid as ransom or reward stands uncontradicted is of no moment. So does the value of the unreturned items stand uncontradicted at the sum of $50,500 and yet the jury’s verdict for about one half receives our unanimous approval. We recognize and reaffirm the general rule that a party should not be permitted to adduce evidence in support of his case if he refuses to disclose information which is known to him and which is an integral part of the claim and the preparation of a defense thereto. However, this case presents unusual and exceptional circumstances which in our opinion justifies the exercise of discretion by the trial court to permit the case to go to the jury without compelling disclosure of the intermediary’s identity. In a colloquy with the court, appellant’s counsel stated [21] “ John Keane is the intermediary.” Keane was appellant’s former employee. He was not called as a witness. Plaintiff gave as the reason for his refusal to divulge the name of the intermediary his mortal fear for his and his family’s life. He credited threats that he would be killed gangland style and that he would have the privilege of seeing his older daughter walking with a cane and a seeing eye dog. Plaintiff was confronted with Hobson’s choice of accepting the intermediary’s offer of help with the absolute condition that his identity not be disclosed or of foregoing the return of his property. Had he not accepted the condition of secrecy and paid the ransom money, appellant might well argue that he had failed to minimize his damages and was therefore not entitled to recover. The rationale of full disclosure in criminal cases is that, since the government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privilege to deprive the accused of anything which might be material to his defense. (Jencks v. United States, 353 U. S. 657; United States v. Andolschek, 142 F. 2d 503, 506.) Yet exceptions are made. In United States v. Malizia (503 F. 2d 578), the defendant was convicted of sale of cocaine. The government not only failed to produce the informant purchaser, but it was permitted to explain that the missing informer had told a government agent that he would never testify because he was in fear of being killed. Of course, the most important and essential witness called by the government in a narcotics case is the purchaser. Notwithstanding the failure to produce the purchaser and the damaging and prejudicial testimony that his life had been threatened, the Circuit Court upheld his conviction. Recently, the Court of Appeals affirmed a conviction of a defendant who had made two sales of drugs to an undercover police officer notwithstanding the trial court’s refusal to allow disclosure of the informer’s identity. In People v. Brown (34 N Y 2d 163, 169) the court stated “ that the issue [of disclosure] is one to be determined in the exercise of sound discretion by the Trial Judge ([Roviaro v. United States] 353 U. S., at p. 61, n. 9, p. 62).” In the case at bar, the Trial Judge very carefully considered whether he would compel disclosure of the intermediary’s identity. It would seem that if in a criminal case where the overriding consideration is to avoid the risk of convicting the innocent, disclosure is left to the discretion of [22] the Trial Judge, we should not disturb it in this civil case where the risk is one of dollars and cents. Under the exceptional circumstances of this case we hold that plaintiff’s refusal to disclose the identity of the intermediary was, as held by the Trial Judge, a matter of weight to be afforded his testimony and not admissibility. Plaintiff lost his property due to appellant’s negligence. The money he paid to recover it inured to the very substantial benefit of appellant. He should not be compelled to expose himself and his family to bodily harm or death as a condition to recovery. Mr. Keller corroborated plaintiff’s testimony of the payment of the ransom and the return of the stolen items. The court fairly submitted the issue to the jury. The verdict is not against the weight of the evidence and we may not disturb it. The judgment should be affirmed with costs and disbursements to respondents. Steueb, J. (dissenting).