Le Salg v. Dougherty , 62 N.Y.S. 510 ( 1900 )

Leventtritt, J.

The plaintiffs, as sub-lessees of part of a store, brought this action to recover damages of the defendants, who, they claimed, broke a plate-glass windoyr while engaged in constructing an awning in front of their premises. The defendants offered no evidence, but moved to dismiss the complaint on the grounds, that the plaintiffs were not entitled to bring the action and that there was no evidence of damage. The justice, erroneously we think, granted the motion.

Although the lease to the plaintiffs was not introduced in evidence, it was proved without objection that by its terms they were under obligation to keep the half of the premises occupied by them •in repair. Having been compelled to incur expense in replacing the window destroyed by the negligence of the defendants, the plaintiffs were ¡entitled to recover upon proper proof of damage.. On this point one of the plaintiffs testifies that he had paid fifteen dollars for a new sheet of glass and a smaller sum for lettering. While this testimony standing alone would furnish but insufficient proof (Volkmar v. Third Ave. R. R. Co., 28 Misc. Rep. 141), other evidence by the same witness to the effect that he made inquiries of several concerns, that their prices'were all higher than that of the dealer he employed, whose offer was cheaper by several dollars than any of the others, was sufficient to warrant the inference that the outlay constituted the fair and reasonable value of the repair.

The judgment should be reversed and a new trial ordered.

Freedman, P. J., and MacLean, J., concur.

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