Lighterman v. Barrett

LEHMAN, J. The plaintiff has recovered a judgment for the sum of $50 for damages caused by delay on the part of the defendant in delivering a trunk. The defendant does not deny liability, but claims that the evidence as to damages does not support a judgment for $50. [1] The complaint sets forth that “by reason of said delay the plaintiff was deprived of the use of the contents of said trunk,” and it contains no allegation of physical injury to the contents of the trunk. The evidence admitted as to physical deterioration in the contents was not within the pleadings, and, upon the defendant’s objection should have been excluded. [2] If we now disregard this testimony, the remaining testimony presents no sufficient basis for the judgment. The plaintiff showed that she spent moneys for clothing, and also moneys in attempting to trace the trunk. In the case of Bridge v. N. Y. Central & Hudson [884] River Railroad Company, 88 Misc. Rep. 35, 150 N. Y. Supp. 146, this court stated: “The defendant claim» that the measure of damages is the value of the use of the clothing during the period of delay. * * * Under the circumstances of the case, the difference between the cost of plaintiff’s intermediate purchases and their value to her at the time of the delivery of the missing trunk is the reasonable measure of this damage.” In the present case the evidence shows only the cost of such purchases ; but there is absolutely no evidence to show the value of these purchases to the'plaintiff when tire trunk was delivered. [3] The plaintiff claims that the defendant should have given such evidence in mitigation of damages; but that is, of course, not the rule. The plaintiff, as part of her case, must prove her damages, and she has not met the burden which tire law puts upon her until she furnishes all the elements from which an inference can be drawn as to the amount of the damages. [4] In the same case in this court the opinion also added: “I also regard as a proper element of the cost of the articles- purchased her expenses necessarily incurred in making the purchases. She is also entitled to recover the cost of her reasonable efforts to trace the lost property.” In the case at bar the plaintiff has also attempted to prove these elements of damage. The testimony, however, is extremely vague as to the amount of such expenditures, and there is no evidence from which we can infer that the amount expended was reasonable or necessary. The judgment should therefore be reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All concur.