Imhorst v. Burke , 7 Daly 54 ( 1877 )

Per Curiam.^*

We are of opinion that the evidence of value of the goods withheld from the plaintiff is too vague,, general and uncertain to sustain the finding of the referee on that question. The goods consisted of office furniture,, desks, chairs, carpets, shades and screens, iron railings, stoves, looking-glasses, brushes, blotters, paper baskets and similar articles, all which had been used by Seymour, McCullogh &- Co. for some time before the plaintiff acquired title to them.

Without showing the length of time they had been in use; the amount of wear they had been subjected to, the condition in which they were at the time the plaintiff demanded the return of them, or their adaptability to use elsewhere; the plaintiff, who was his own and the sole witness as to value, claiming to be an expert because he had furnished offices and bought and sold furniture on several occasions for his own use, and in the course of his business, ivas allowed to state, as the basis of his valuation, the original cost of the articles with a deduction of “ one-third old for new.” This rule of one-third off the cost was adopted by the referee in assessing the value. No reason was given for applying such a rule except the plaintiff’s statement that he considered the property worth one-third less than its original cost. He had not bought all the property himself, and he testified from the books as to the cost of a portion of it at least. There can be no ground for such an inflexible rule with reference to second-hand furniture; the value of which must depend upon its condition.

Judgment reversed, new trial ordered, costs to abide the event.

* Present, Van Brunt, Joseph F. Daly, and Van Hoesen, JJ.