
    The Palestine Hebrew Wine Company, Respondent, v. The Terminal Warehouse Company, Appellant.
    (Supreme Court, Appellate Term,
    May, 1910.)
    Damages — Measure for torts — Liability for conversion — Time and place of estimating value.
    Values—Cost price.
    Where, - in an action to recover the value of the contents of two casks of liquor stored in bond with a warehouse company, the plaintiff testifies as to the market value of the liquor, it-is competent to show on cross-examination the price paid hy it for the same kind of liquor three and one-half years previous to the trial of the action; and the exclusion of such testimony is error, the cost price being some evidence of value, though not conclusive as against the plaintiff.
    Plaintiff was entitled to have the liquor returned to it in- the condition in which it was stored, and a conversion being" proven it was entitled to recover the market value thereof in that condition and not the value after payment of duty, bottling, labeling and packing in cases.
    Appeal from a judgment in favor of plaintiff, rendered in the Municipal Court of the city of Hew York, second district, borough of Manhattan.
    Paul Bonynge, for appellant.
    Morris E. Gossett, for- respondent.
   Guy, J.

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, in an action brought against a warehouse company to recover the value of the contents of two casks, containing respectively wine and cognac, which had been imported by plaintiff from Palestine and which were stored in bond with the defendant company. Hpon subsequent delivery of the casks to plaintiff they were found practically empty. On the trial plaintiff called its secretary, who testified to the market value of the cognac as eight dollars per gallon, and the wine as six dollars per gallon. On cross-examination defendant’s counsel asked witness a number of questions as to the prices paid by plaintiff for the articles in question, when purchased some three and one-half years previous to the time of trial. These questions were excluded and an exception taken by defendant.

“ Where, in an action to recover damages for the conversion of property, the plaintiff attempts to establish the value of the property converted, by his own mere opinion, it is competent to show, on cross-examination, the price actually paid for the property converted on two business sales made prior to the commencement of the action. For the purpose of proving that the plaintiff, in his testimony, has overestimated the value of the property, it is competent to show the value of other articles included in the same purchase, as a test of the estimated value of the property converted.” Wells v. Kelsey, 37 N. Y. 143.

It is claimed by plaintiff that evidence of the cost of-the property in question is inadmissible, because the purchase was made at too remote a date. In view of the fact that the property had remained in storage, where it could not seriously alter in quality, and that plaintiff’s witness testified that there was no material change in the value of such merchandise from the time of the purchase to the time of the alleged conversion, I am of the opinion that the time of purchase was not too remote. Defendant also sought, by proper questions on cross-examination, to impeach' plaintiff’s witness by showing that, subsequently to the storage of the goods with defendant, the witness had sworn to a value of seventy cents per gallon for the cognac, as compared with a valuation of eight dollars per gallon, as testified to on the trial. These questions were excluded and an exception taken. The exclusion of the evidence was erroneous; and, in view of the fact that plaintiff’s only witness as to value based his estimate of value upon prices charged by plaintiff to the wholesale trade, after payment of duty, bottling, labeling and packing in cases, and that there was no evidence that such merchandise was dealt in by any other importers than the plaintiff in this city, the effect of such ruling was to practically permit plaintiff, or plaintiff’s employee, to fix his own values on the merchandise and to exclude all inquiry as to the accuracy of such valuation. While the evidence of cost price would not he conclusive as against the plaintiff, it at least would be some evidence of the value of the articles in question. See Hoffman v. Conwer, 76 N. Y. 121.

Plaintiff’s evidence as to value appears also to have been based on an entirely erroneous theory. Plaintiff was entitled to have the goods returned to it- in the condition in which they were stored with defendant, in barrels; and, if a conversion was proven, the plaintiff would he entitled to recover the market value of the goods in the form in which they were stored with defendant, not the value of such goods after payment of duty, bottling, labeling and packing in cases. That this method of valuation was erroneous is proven by the fact that plaintiff’s witness stated that, for the cognac which he estimated to be worth eight dollars per gallon, “it is $5 per gallon in the bonded warehouse, not figuring on the duty.”

There was not sufficient evidence in the case as to the market value of the goods in the form in which they were left with defendant- to form the basis of a verdict in favor of plaintiff.

For the reasons above given the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Seabuky and Bijub, JJ., concur.

Judgment reversed and new trial ordered.  