Opinion
June Term, 1903.
Alexander Blumenstiel, for the appellants.
John L. Linehan, for the respondent.
This is an appeal from a judgment in favor of the plaintiff for the sum of $7,823, entered upon the verdict of a jury, and from an order denying a motion for a new trial. The action was brought to recover damages for an alleged wrongful eviction of the plaintiff from certain premises on Sixth avenue, in the city of New York, leased to him by the defendants. The eviction occurred as a result of summary proceedings instituted against the plaintiff by the defendants for non-payment of rent on the 1st day of December, 1899. The warrant of dispossession was executed on the thirteenth day of December of that year, and the respondent in that proceeding appealed to this court, where the final order was reversed on the ground that the justice had not obtained jurisdiction through the attempted substituted service of the precept upon this plaintiff. This action was brought pursuant to section 2263 of the Code of Civil Procedure, which in cases of reversal of a final order in summary proceedings gives to the person dispossessed the right to maintain an action to recover the damages which he has sustained by the dispossession. The plaintiff alleges and introduces evidence to show that at the time of the eviction large amounts of personal property which belonged to him and were in the demised premises were withheld from him, and his later demand for their delivery was met with a refusal. The court requested the jury to give the details of the verdict, and one of the three items which went to make up the verdict, as the jury reported it, was the "damages for conversion of personal property, $6,000." The whole verdict was $7,091.67.
The plaintiff testified to a very large amount of personal property which he had installed in the premises and which he claims was converted, and with it were some thirty oil paintings. In addition to the plaintiff's own testimony he called one expert, Peter Lihou, to testify to their value. Mr. Lihou swore that he had been engaged for twenty-five years in the sale and handling of pictures and works of art and knew their value; that he had handled oil paintings and owned a large art store; that for a number of years he had been connected with art galleries. He said that he had been to the premises in question on three different occasions, and had noticed paintings in different parts of the building. He was then asked their value, which was objected to on the ground that "it is not within the issue and is irrelevant and immaterial." The objection was overruled and exception taken. The witness testified that the paintings were of the value of between $3,000 and $4,000. From his cross-examination it appeared that the examinations he had made of the pictures were very recently before the trial, which occurred in October, 1901. Defendants' attorney then moved to strike out the evidence of the witness on the ground that it did not appear that the pictures he had examined were the same pictures, which motion was denied and defendants excepted. It cannot be assumed that the pictures which were upon the walls of the premises in October, 1901, were the same paintings that were installed by the plaintiff and left there by him at the time he was evicted in December, 1899, nearly two years previous. There is no evidence in the printed record which connects the pictures which the witness saw there in October, 1901, with the pictures claimed to have been converted by the defendants.
The denial of the motion to strike out the evidence was, therefore, error, and must be held to have been prejudicial, inasmuch as without it there is no evidence in the case as to the value of these pictures. It appears that the oil paintings were a very considerable portion, both in bulk and in value, of the property which the plaintiff claims was taken from him, and inasmuch as the jury has allowed $6,000 damages for the conversion of the personal property in the premises upon plaintiff's evidence that it was worth between $10,000 and $11,000, we cannot say that they were not influenced largely by the evidence of the witness Lihou that the paintings in question were worth between $3,000 and $4,000.
The plaintiff's evidence cannot be held sufficient to qualify him as an expert upon the value of such oil paintings as appear to be in controversy in this case. The property claimed to have been converted consisted of many kinds of household, barroom and general furniture, upholstery, paintings and musical instruments. Upon the question of plaintiff's qualification to testify as to the value of the property, it appears that he worked for nine years for a furniture house in Cleveland, and that experience, in connection with his business later on, he says, gives him an intimate knowledge of value and prices of articles of furniture and chattels, such as were in his place at the time he was evicted. He then testified that "about ten years after that, I was in the storage, teaming and auctioneering business in Cleveland, Ohio, and made a specialty of handling household goods of all descriptions, and also art sales, and in fact I had a general auctioneering business, and once in a while machinery and real estate for the United States Government in Cleveland, and after coming to New York about ten years ago I went in the furnished flat business." It cannot be held upon this, which is the only evidence of plaintiff's qualification to speak as an artist, that he was sufficiently expert to give any opinion as to the value of oil paintings. An expert must be one who has some special, particular or practical knowledge in relation to the special department of the affairs of men as would qualify him to stand as an expert, skilled enough to teach others. An expert is one instructed by experience, and to become such requires a course of previous habit and practice or of study, so as to be familar with the subject. ( Carter v. Boehm, 1 Smith L.C. [4th Am. ed.] *286; Nelson v. Sun Mutual Insurance Co., 71 N.Y. 453.) The bare suggestion that plaintiff made a specialty of handling household goods of all descriptions, "and also art sales," is quite insufficient to qualify him as a person specially skilled in the values of oil paintings, or to enable him to teach others in relation thereto. While it has been held that whether a witness offered as an expert has sufficient qualifications, is generally a question of fact to be decided by the trial judge, and his decision will not be held to present any question of law requiring a reversal unless it is against the evidence, and wholly without support of the facts appearing in the case ( Slocovich v. Orient Mut. Ins. Co., 108 N.Y. 56), we are at liberty to reverse this judgment for error of the trial judge in deciding this issue of fact as to plaintiff's qualifications as an expert. Defendants fairly raised the objection that plaintiff was not shown to be an expert, and that his testimony was incompetent.
For these errors the judgment must be reversed and a new trial granted, costs to abide the event.
BARTLETT, WOODWARD and JENKS, JJ., concurred; GOODRICH, P.J., voted for affirmance.
Judgment and order reversed and new trial granted, costs to abide the event.