
    Katherine Van Rensselaer et al., as Executors, etc., Resp’ts, v. Horatio D. Mould, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 8, 1894.)
    
    Damages—Rules adopted at instance oe party.
    The correctness of the rule of damages, adopted at the instance of a party, cannot be questioned by such party.
    Appeal from a judgment in favor of plaintiffs.
    
      Hale, Gowen & Bulkley (Eselc Goioen, of counsel), for app’lt; Richard W. Brass ( William F. Beutler, of counsel), for resp’ts.
   Herrick, J.

— There seems to be no question in this case but that the defendant, for a series of years, trespassed upon the property of the plaintiffs’ testatrix, and took and carried away ice therefrom, without permission, and against her repeated warnings and protests. It is not seriously contested but what the plaintiffs-are entitled to recover damages for such trespass. The only serious question in the case is as to the measure of damage adopted by the referee. I do not see that appellant can justly complain of the ruling of the referee, for in response to his request the referee found “that under the circumstances the true measure of damages is the value to the plaintiffs’ testatrix of the right to sell to others the privilege of cutting and removing the ice in question,” and that was the rule adopted by the referee. The rule for measuring the damage, thus adopted, whether correct or incorrect, was adopted by the referee at the defendant’s special request, and he cannot now challenge its correctness. What the value of that right was, was a question of fact for the referee to determine -from all the evidence before him; and all the evidence bearing upon that question that from the nature of the case could be given seems to have been given, and from it the good sense of the referee had to be exercised to arrive at a proper conclusion. Drucker v. Man. Railway Co., 106 N. Y. 157-164; 8 St. Rep. 599. From the conclusion that he arrived at upon such question of fact I can find nothing in the evidence that justifies me in concluding that he erred, and found a value for the right in question not justified by the evidence.

Judgment, therefore, should be affirmed, with costs.

All concur.  