
    Sarkis Jelalian, Appellant, v. New York, New Haven and Hartford Railroad Company, Respondent.
    First Department,
    November 5, 1909.
    Evidence — carrier—loss of goods in transit — damages — purchase price of goods which have been used —value — question for jury. .
    Where on the trial of an action to recover the value of certain personal property delivered to and lost by a common carrier, including a Persian rug, clothes and blankets which had been used, the plaintiff has testified that the articles were in as good condition as when purchased, it is reversible error to exclude evidence of the purchase price of the goods and thereafter dismiss the complaint at the close of the plaintiff’s case, for the cost of articles purchased at a Iona fide sale is some evidence of value, and under the circumstances it was the best evidence available.
    It was for the jury to say, when all the available evidence was before them, whether they could find therefrom the value of the goods in question.
    Patterson, P. J., dissented.
    Appeal by tlie plaintiff, Sarkis Jelalian, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of May, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the New York Trial Term.
    
      James E. Duross, for the appellant.
    
      William L. Barnett, for the respondent.
   Ingraham, J.:

This action was brought to recover the value of certain personal property delivered by the plaintiff to the defendant to be shipped from Providence, R. I., to the city of New York. The complaint alleges that this merchandise was delivered to the defendant, and that the defendant has refused and neglected to deliver the same, the plaintiff claiming the value of the said articles to be $1,837. The answer denies the material allegations of the complaint.

Upon the trial the plaintiff testified to delivering this property to the defendant’s agents at Providence and the failure of the defendant to deliver the merchandise in the city of New York; that the property not delivered consisted of a Persian rug, several suits of clothes, several blankets, and some dishes and household goods; that the plaintiff -had the rug for about six years, it having come from Turkey in Asia ; that this rug was sent to the plaintiff by his father and he gave a description of it; that the rug was not worn but was quite new and clean, and in the same condition as when the plaintiff first obtained it; that there were two suits of his wife’s clothes that had been purchased in Providence, that had been worn but once or twice, and were in as good a condition as when the plaintiff purchased them. The plaintiff was then asked what he paid for these suits of clothes, which was objected to by the defendant, the objection sustained, and plaintiff excepted. The plaintiff then testified that he bought the blankets in Rhode Island; that these blankets were in the same condition as when purchased. When asked what the blankets cost the defendant objected, the objection was sustained and plaintiff excepted. The plaintiff then' called an importer of Oriental rugs who had been in business for upwards of nine years and was familiar with the price of Oriental rugs in New York, who testified that the price of Oriental rugs had increased during the last eight or nine years. The plaintiff then called as a' witness his cousin, who testified that he came from Turkey eight years ago ; that he knew the plaintiff’s father in Turkey and was present when plaintiff’s father purchased the rug in Turkey and saw the plaintiff’s father pay for it; that since he had been in this country he had seen the rug in the plaintiff’s parlor and identified it as the rug that he had seen the plaintiff’s father purchase. He was then asked what the plaintiff’s father paid for the rug which was objected to by the defendant, the objection sustained, and the plaintiff excepted. The court having excluded all testimony offered by the plaintiff from which the jury could find the value of these articles, dismissed the complaint," and the only question presented on this appeal is whether this testimony was properly excluded.

We think this evidence was competent. While it' is true that the cost of an article of personal property is not satisfactory evidence as to its value, if it has been in use it seems to be the best evidence that was available to the plaintiff. No expert who was acquainted with the value of this property and could testify as to its value had seen it, and in consequence of the defendant’s failure to deliver the property to the plaintiff it had been lost. As a general proposition the cost of articles of personal property when purchased at a bona fide sale is some evidence of value, subject of course to a proper deduction for the depreciation caused by the use thereof. It is quite clear that where articles of the kind specified here have been lost or destroyed the owner seeking to recover their value from the person responsible for their loss is necessarily restricted to evidence of this character where it is impossible to obtain expert testimony as to its value. To exclude such testimony would necessarily prevent a wrongdoer from being held responsible. (See Gill v. McNamee, 42 N. Y. 44; Matter of Johnston, 144 id. 563; Parmenter v. Fitzpatrick, 135 id. 190; Hawver v. Bell, 141 id. 140.) The weight of this testimony and whether, if admitted, it would furnish a sufficient basis for a finding as to the value of the property was'a question for the jury. The defendant was responsible for the value of these goods, and under any circumstances the plaintiff was entitled to a verdict for nominal damages. After all the evidence that was available was before the jury, it was for them to say whether they could find from such evidence the valúe of the goods in question.

It follows that the judgment appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

McLaughlin, Laughlin and Scott, JJ., concurred; Patterson, P. J., dissented.

Judgment reversed, new trial ordered, costs to appellant to abide event.  