Opinion
November 21, 1967
Judgment for plaintiff unanimously reversed, on the law and on the facts, the verdict of the jury vacated and a new trial granted on the issue of damages only, without costs and disbursements, unless the plaintiff stipulates to accept $40,171 in lieu of award by verdict, with interest, in which event the judgment is modified to that extent, and, as so modified, affirmed, without costs and disbursements. It was improper to submit the case to the jury under a charge whereby it could estimate the damages to the insured goods on the basis of a deduction of the proceeds of the May, 1960 sale from the sound value of the goods as of the time of the delivery of the shipment in February, 1960. In any event, the verdict of the jury is in an amount which is not properly supported by the law and the evidence appearing in the record. Where the market value of goods fluctuates, the damage to a particular shipment may not be properly estimated by deducting damaged worth of goods as of one day from the sound value thereof estimated as of another day; values on the same day should be used. Where depreciation in value is fixed by a sale, it is the sound value as of the date of the sale that must be compared in order to arrive at an insured loss. (See Zack Metal Co. v. Federal Ins. Co., 26 A.D.2d 54; Templeman, Marine Insurance, p. 190; II Arnould, Marine Insurance [10 British Shipping Laws], § 1014.) According to the credible evidence in the record, the reasonable market value as of May 19, 1960, of the particular steel in a sound and undamaged condition, would not exceed 6 cents a pound or $120 a ton. Thus, a total of $58,608 was established as the sound value of the insured steel (488.4 tons), and, on the basis of the present record, this court would set aside, as against the weight of the evidence, any verdict based upon a finding of a higher valuation for this steel as of May 19, 1960. If we deduct from the sound worth of the steel ($58,608) the sum of $42,978 as representing the proceeds of sale of the damaged steel on May 19, 1960, this leaves a difference of $15,630, which represents the damage to the goods occurring during the shipment. Accordingly, the goods were damaged to the extent of approximately 27% of the sound value thereof and the plaintiff would be entitled to recover 27% of the face valuation ($101,100) of the policy. ( Zack Metal Co. v. Federal Ins. Co., supra.) Thus, plaintiff should recover $27,297 together with the sum of $12,874 representing the expenses incurred by plaintiff in the handling and sale of the goods. The total, as aforesaid, is $40,171, and the record does not properly support a recovery in excess of such sum. The plaintiff shall have 30 days from the date of the entry of the order hereon to stipulate in writing to accept the said sum of $40,171, with interest from January 28, 1960, in lieu of the verdict of the jury. On failure to so stipulate, the matter is remanded for a new trial solely on the issue of damages ( Borden v. Chesterfield Farms, 27 A.D.2d 165; Mercado v. City of New York, 25 A.D.2d 75; 4 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 4404.34). In connection with any new trial, it is suggested that the parties agree to a nonjury trial. In the event of a failure to so agree, the matter should be submitted to the jury with written interrogatories covering the various relevant questions and with instructions that a general verdict shall be rendered on the basis of the answers to the interrogatories. (See CPLR 4111, subd. [c]; 4 Weinstein-Korn-Miller, N.Y. Civ. Prac., pars. 4111.09-4111.12.)
Concur — Eager, J. P, Steuer, Tilzer, McNally and McGivern, JJ.