Opinion
December 23, 1965
Plaintiff appeals from a judgment of the Supreme Court in favor of defendant entered upon a jury verdict at Trial Term. A 1959 hearse-ambulance owned by plaintiff was damaged by fire while undergoing a minor repair in defendant's garage on May 10, 1962. The jury was not bound to draw the inference that the fire was attributable to the failure of the mechanic engaged in making the repair to exercise due care in the circumstances. After the fire defendant, at his own expense, undertook to restore the vehicle to its former condition. The general manager of the sales agency which sold the vehicle to plaintiff testified as an expert that despite the repairs made to the damaged vehicle by defendant it had depreciated in value to the extent of about 50% of its former worth as a result of the fire. There was proof in the record from which it might be concluded that the restoration of the vehicle to its former state had been satisfactorily accomplished. Although no testimony of similar character was offered by defendant to contradict that of the expert witness, it was within the province of the jury under the facts of this case to accept or to reject his testimony. ( Commercial Cas. Ins. Co. v. Roman, 269 N.Y. 451, 456-457.) Judgment affirmed, with costs. Gibson, P.J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.