Opinion
May Term, 1903.
Upon plaintiff stipulating to reduce judgment as entered to the sum of $486.49, judgment as so modified affirmed, without costs; if such stipulation be not given, judgment and order reversed, new trial ordered, costs to appellant to abide event.
We agree with the view expressed by the learned trial judge that the written statement naming the goods on the grade floor as show cases and refrigerator, is not conclusive upon the plaintiff, for he testified that when his attention was more particularly directed to the subject he remembered seeing there parts of the soda water fountain, and that the ceiling was intact so that the fountain could not have fallen through. His testimony as to the fountain being on the ground floor was corroborated by others, and although the defendant's evidence is to the effect that it was between the second and third floors, this but presented a question of fact for the jury. As to the value of the goods on the ground floor including the fountain, the actual values named by the plaintiff, taking the highest figures given by him, aggregate $1,400, the fountain being put at $1,000, the refrigerator at $150 and the cigar case $250; and although the cost price he places at over $2,000 his testimony giving the actual value at the time of the fire of the goods on the ground floor which were destroyed, is controlling upon the amount to be recovered. For one-fourth of that sum the defendant would under the charge of the court be liable which would warrant a verdict for no more than $350 instead of $500. We have not overlooked the insurance broker's statement that he considered the value of the goods on the grade floor as all of $2,000, but the facts upon which this conclusion was based are not set forth beyond his testimony that he had known of the plaintiff's goods before they were placed in storage; nor does it appear whether by this sum he meant the cost or the actual value. We think, therefore, that if the plaintiff will stipulate to reduce the judgment as entered to the sum of $486.49 the judgment as so modified and the order appealed from should be affirmed, without costs; and if not that the judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event. Van Brunt, P.J., Ingraham, McLaughlin and Laughlin, JJ., concurred.