
    William Duffus, Resp’t, v. Eli T. Bangs et al, App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 7, 1891.)
    
    Conversion—Assessment of damages—Evidence.
    A nonsuit in an action for conversion was reversed by the general term, and a new trial granted, and its order was affirmed by the court of appeals, and judgment absolute rendered against defendants on stipulation. Feld, that on the assessment of damages defendants were not confined to cross-examination of witnesses produced by plaintiff, but were entitled to introduce evidence of the value of the property in question, and that it was error to exclude such evidence.
    Appeal from a judgment entered upon an assessment of damages after final judgment ordered by the court of appeals, and 'from an order denying a motion to vacate the assessment and for a reassessment of the damages.
    
      T. K. Fuller, for app’lts; Walter S. MacGregor, for resp’t.
   Martin, J.

—On the trial of this case the plaintiff was non-suited. From the judgment entered thereon he appealed to the general term, where the judgment was reversed and a new trial granted. The defendants thereupon appealed from the decision of the general term to the court of appeals, stipulating that if the order granting a new trial was affirmed, judgment absolute should be rendered against them. The decision of the general term was affirmed and judgment absolute rendered on such stipulation. The case was then remitted to this court, and the judgment of the court of appeals made the judgment of the supreme court.

The action was for the conversion of personal property. An assessment of damages was had at circuit before a justice of this court and a jury. On the hearing the plaintiff read the testimony of one witness as to the value of the property in question, and rested. The defendants then offered to prove that the property was of much less value than testified to by the plaintiff’s witness, and also to impeach such witness. This evidence was objected to and excluded, the court holding that the plaintiff was entitled to recover thirteen hundred dollars, the alleged value of the property, as the testimony offered by him showed that it exceeded that sum. To this ruling the defendants excepted.

Subsequently a motion was made by the defendants to vacate the assessment of damages. On this motion the court held that the defendants were not entitled to introduce any evidence of the value of the property in question, but could only cross-examine witnesses produced by the plaintiff, and therefore denied the motion. The correctness of these rulings is challenged by the appellants, and presents the only question we are called upon to decide in this case.

It must be conceded at the outset that the judgment against the defendants determined all the issues in the case adversely to them and established the plaintiff’s right of recovery herein. But we think it did not entitle the plaintiff to the amount of damages alleged, nor to such as might be testified to by such witnesses as he might call, regardless of their credibility.

In an action for conversion the allegation of value is not a traversable one, and even on default, where all the traversable averments are taken as admitted, the plaintiff must prove his damages if he seeks to recover more than a nominal amount. Connoss v. Meir, 2 E. D. Smith, 314, and authorities cited in opinion ; Raymond v. Traffarn, 12 Abb. Pr., 52 ; McKensie v. Farrell, 4 Bosw., 192, 202; DeGraaf v. Wyckoff, 13 Daly, 366; Starr v. Cragin,24 Hun, 177.

As the allegation of damages in this case was not an issuable averment, it follows that the amount which the plaintiff was entitled to recover in excess of nominal damages was in no wise settled by the judgment awarded by the court of appeals. If the plaintiff was entitled to recover more, an assessment of damages was required to determine the amount

It is not claimed that the plaintiff occupied any better or different position than he would upon an assessment of damages before a sheriff’s jury or before a court and jury at circuit where there had been a default in answering. Thompson v. Lumley, 7 Daly, 74. The rule that on assessment of damages, either at the circuit or before a sheriff’s jury, a defendant may call and examine witnesses or otherwise prove all proper mitigating circumstances, seems to be well settled. Saltus v. Kipp, 12 How. Pr., 343; 5 Duer, 646; McDonald v. Walsh, 5 Abb. Pr., 69; Gilbert v. Rounds, 14 How. Pr., 46, 51; Warner v. Kenny, 3 id., 323 ; Lane v. Gilbert, 9 id., 150; Hays v. Berryman, 6 Bosw., 679; Thompson v. Lumley, 7 Daly, 79; 3 Wait’s Practice, 662; 2 Rumsey’s Practice, 602.

We think the court erred in excluding the evidence offered by the defendants as to the value of the property converted, and that for such error the judgment and order should be reversed and the motion for an order vacating the assessment of damages should be granted.

This determination of the defendant’s appeal renders it wholly unnecessary to consider the question sought to be raised by the plaintiff’s appeal; it is, therefore, dismissed without costs.

Judgment and order reversed and motion to vacate assessment of damages granted, with ten dollars costs of motion and costs of this appeal to the appellants.

Merwih, J., concurs.  