
    John Donnelly, Respondent, v. Samuel Poliakoff, Appellant.
    (Supreme Court, Appellate Term, First Department,
    February, 1913.)
    Automobiles — damages for deprivation of use of — negligence.
    Where, as a result of a collision with defendant’s truck, plaintiff’s automobile was injured, damages for the deprivation of its use while being repaired are not recoverable where it appears thát plaintiff has suffered no loss in his business and had another machine which he could use in place of the one injured.
    Appeal by the defendant from a judgment of the Municipal Court of the city of Yew York, borough of Manhattan, third district, rendered in favor of the-plaintiff in an action to recover for damage to the plaintiff’s automobile.
    Kleiner & Kleiner, for appellant.
    Conway, Williams & Kelly (D. Theodore Kelly, of counsel), for respondent.
   Lehman, J.

The plaintiff has recovered a judgment for damages sustained by reason of a collision between his automobile and a truck owned by the defendant. These damages include not only the cost of repairs but also a sum allowed for deprivation of the use of the automobile during the time required for these repairs. It appears that the automobile was used in the plaintiff’s business but it does not appear in what manner it was used nor what profits were derived from its use. It further appears that, while the automobile was in the repair shop, the plaintiff hired no other automobile but used a second automobile belonging to himself. I do not think that under these circumstances any damages for the deprivation of the use of the automobile can be allowed.

A judgment for damages must be based upon definite proof, and not upon conjecture. Where an automobile has been injured, the court can award damages for the deprivation of its use while it was in the repair shop only where it is shown that the automobile was used for a business purpose or that another vehicle was hired to take its place. Bondy v. New York City R. Co., 56 Misc. Rep. 602; Foley v. Forty-second St. M. & St. N. R. R. Co., 52 id. 183. There is no claim here that any other vehicle was hired to take its place and the judgment, therefore, must stand or fall upon the proof that it was used in the plaintiff’s business. If damages are awarded because the plaintiff was deprived of the use of the automobile in his business, these damages must of course be based upon an estimate of loss to his business. There is, however, in this case no claim that the business has suffered any loss; in fact it affirmatively appears that the plaintiff suffered no loss in his business, for •he had another automobile which he could use in place of the injured automobile.

It follows that the damages are based upon an erroneous theory, and the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Seabuby and Page, JJ., concur.

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