Schoenholtz v. Third Avenue Railroad , 36 N.Y.S. 15 ( 1895 )

Fitzsimons, J.

The evidence shows" that the plaintiff hired the wagon damaged; he, therefore, had a special property in the-same; that being so, and it having been damaged by the carelessness of the defendant, the plaintiff had the right to recover, to have the damage repaired and' charge the expense thereof to the defendant, so the trial 'justice was right in allowing plaintiff to prove what he had to pay to have such damage repaired. That is the only exception taken to the admission or exclusion of testimony.

The only* exception to the judge’s charge is based upon that part of the charge which directs the jury to allow plaintiff for such repairs, the amount being twenty-three dollars and fifty cents, in case they rendered a verdict in his favor.

All the rest of the exceptions are taken to certain requests whic'li plaintiff requested the court to charge in his favor, and also because of the refusal of the' court to charge certain requests of the defendant. •

The judge’s charge, in our opinion, submitted to the jury fully and fairly the law of the case.

It appears to us that it was very much in defendant’s favor because of that fact apparently the plaintiff’s coungel deemed it his duty to submit twenty-eight requests to charge; many ■of them-, were substantially embraced in the judge's charge.' The defendant submitted seventeen such requests; many of-them 'also were .included in the judge’s charge. ■

A careful reading of all these forty-five requests convinces us that the main object counsel had in view in their submission, was to entrap ,the trial justice and to obtain something,' which they were unable to secure dhring the. submission of the evidence or against the judge’s -charge,, viz., a.-good .exception. Such a practice should_ not he encouraged; as before', ■stated, the judge’s charge'contained all the law that it was necessary for the jury to know so far as this case was concerned, and counsel certainly were satisfied with it because no substantial objection was taken to it, .and counsel in all- fairness should have rested there.'

Every-request that was charged in plaint-ifE’s favor and at his .suggestion was excepted to by the -defendant’s counsel, and .every request that the justice refused to charge as requested by the defendant was excepted to, as well as. any. modification of such requests, but none of the exceptions so-, taken, in our judgment, should entitle defendant'1 to a new trial.- ■"

The judgment must be 'affirmed, with costs.

McCarthy, <L, concurs.

Judgment affirmed, with costs.