
    INDEPENDENT LINEN SUPPLY & STEAM LAUNDRY CO., Inc., v. ZAKROWSKY et al.
    (Supreme Court, Appellate Term, First Department.
    May 4, 1916.)
    1. Teovbr and Conversion <@=^47—Measure of Damages—Market Price of Goods—Effect of Use.
    In an action lor the price of napkins and towels alleged to have been converted, the measure of damages was not the market price of new articles on the date of the alleged conversion, in view of the fact that they had been used for seven months, and that the life of such goods was ordinarily not to exceed eight months.
    ]Ed. Note.—For other cases, see Trover and Conversion, Cent. Dig. §§ 265, 268, 272; • Dee. Dig. <®=47.J
    2. Trover and Conversion <S=>62—Excessive Damages—Market Price of Goods.
    The award o£ damages based upon such a measure was excessive.
    [Ed. Note.—For other cases, see Trover and Conversion, Dec. Dig. <©=> 62.]
    Appeal from Municipal Court, Borough of Manhattan, Fourth .District.
    Action by the Independent Linen Supply & Steam Laundry Company, Incorporated, against Israel Zakrowsky and another, doing business as Zakrowsky & Zakin. Judgment for the plaintiff, and defendants appeal.
    Reversed, and new trial ordered, with provision for reniittitur.
    Argued April term, 1916, before GUY, COHALAN, and WHITAKER, JJ.
    John L. Bernstein, of New York City, for appellants.
    Julius Blumofe, of New York City, for respondent.
   COHALAN, J.

This action was brought to recover the value of 5,559 napkins and 250 towels, alleged to have been converted by the defendants. The plaintiff is engaged in the steam laundry and linen supply business, and supplied linens to the defendants to be used by them in their restaurant business; the understanding being that the same should be, after use, returned to the plaintiff.

The plaintiff's contention is that it delivered a certain quantity of napkins and towels from April 15, 1915, until August 28, 1915, and that at the end of that time it found that there was a shortage of 5,559 napkins and 250 towels. This contention is denied by the defendants, who assert that they paid for all the linens supplied them by the plaintiff, and that on the date of the termination of the contract the plaintiff took from the defendant’s place of business all of the linens belonging to it, except 11 napkins. The court found for the plaintiff for the full amount claimed, and allowed a recovery in the sum of $199.77.

While it may be conceded that the plaintiff established a cause of action, yet it is our view that the court erred in its failure to apply the proper measure of damages. The court permitted the plaintiff to prove that on the 28th day of August, 1915, the date of the alleged conversion, the cost price of the napkins was 3 cents each and the towels 6 cents each. On the plaintiff’s own showing, the napkins had been used at least seven months, and the life of the napkins was at most of only eight months’ duration. It is true that the cost price of an article is some evidence of its value, but proof of the value of these articles when new is insufficient to support a judgment for conversion occurring several months later, during which time they had been in constant use.

The damages were excessive, because they were based solely upon proof of their value when new, whereas there should have been proof of their value at the time of the conversion. O’Neill v. Patterson, 26 Misc. Rep. 3, 55 N. Y. Supp. 617; Parmenter v. Fitzpatrick, 135 N. Y. 190, 31 N. E. 1032.

Judgment reversed, and new trial ordered, with $30 costs to the appellant to abide the event, unless plaintiff will stipulate within five days after entry of this order and notice thereof in the Municipal Court to reduce the judgment to the sum of $100, with proper costs in the court below, in which event the judgment, as so modified, will be affirmed. All concur.  