
    Davis Sewing-Machine Co. of Watertown v. Best.
    
      (Supreme Court, General Term, Fourth Department.
    
    November, 1888.)
    1. Appeal—Review—Weight oe Evidence.
    Where the case on appeal does not show that It contains all the evidence bearing on the findings sought to be reviewed, it will be assumed that the evidence was sufficient to sustain the findings.
    2. Same—Objections not Raised Below.
    Objections to the admissibility of evidence not made at the trial will not be heard on appeal.
    3. Replevin—Costs—Expenses.
    In an action against the receiver of a trust company for the possession of personal property, plaintiff was properly allowed expenses incurred in sending an agent to demand possession of the property before the receiver was appointed. Martin, J., dissenting.
    Appeal from circuit court, Jefferson county.
    Action by the Davis Sewing-Machine Company of Watertown, H. Y., against William J. Best, as receiver of the national Trust Company of the City of Hew York, to recover possession of certain coupon bonds. The case was tried by the court, a jury having been waived. The court found that defendant wrongfully refused to deliver the bonds to plaintiff, and to its agent sent to demand possession of the same before the action was brought. It was not certified that the case contained all the evidence. Defendant appeals.. For opinion of the court of appeals, reversing the former judgment of the general term, see 11 H. E. Rep. 146.
    
      Velos MeCurdy and John Yard, for appellant. Charles D. Wright, for respondent.
   Hardin, P. J.

Because the case does not show that it contains all the evidence, or all bearing upon the findings of fact sought tobe reviewed, we must assume that the evidence was sufficient to sustain the findings of fact. Porter v. Smith, 35 Hun, 119, affirmed, 107 N. Y. 531, 14 N. E. Rep. 446. In that case we said, viz.: “It is apparent that an appellate court cannot intelligently consider a question of fact unless all of the evidence bearing upon it is before the court; and where a question of fact is sought to be reviewed it should be stated in the case that it contains all of the evidence, or all bearing upon the questions of fact sought to be reviewed. * * * It is the duty of the appellant to present a case so made up and settled that the error complained of be manifest, and not leave the court to indulge in presumptions to overthrow decisions.”

When the evidence was offered to show the expenses incurred in sending Winslow to the trust company to make a demand for the coupon notes, there was no objection taken that the complaint did not sufficiently aver the damages sought to be proven by the witness. Ho such objection can now be heard. Had such an objection been taken at the trial, presumably the court would have allowed the complaint to have been amended, as was allowed in Miller v. Garling, 12 How. Pr. 203. In that case an action was brought to recover the possession of a heifer which was secretly taken from the possession of the plaintiff by the defendant, and it was held .that damages are recoverable for the time spent and expenses incurred by the plaintiff in searching for -the heifer after she was taken by the defendant; and upon the trial an amendment to the complaint was allowed by inserting a claim for such special damages. In Bennett v. Lockwood, 20 Wend. 223, it was held that damages are recoverable “by a bailor for time spent and expenses incurred for searching for property wrongfully taken from the possession of a bailee.” The doctrine of that case has been followed in Wibert v. Railroad Co., 19 Barb. 48, and in McDonald v. North, 47 Barb. 532. In the latter ease, the rule as to the measure of damages in an action of traver is said to be the value of the property taken, with interest, and the court adds, viz.: “ But this rule has many exceptions, and among them is ti.e case where the plaintiff, being the true owner, has been subjected to the loss of time or the payment of money in searching for the property unlawfully taken, in which case a reasonable allowance may be made by the jury for such time and expense, in addition to the value of the property and interest, * * * and a reasonable allowance for the time and expense incurred by the plaintiff in endeavoring to reclaim the property, was a damage immediately proximate to the wrong act of the defendant.” Our attention is called, by the learned counsel for the appellant, to Indemnity Co. v. Flynn, 55 N. Y. 653. There it was said, in an action to recover the possession of personal property, that, “in the absence of any proof that the damages are more or less than the interest on the value, the presumption is that the damages are the interest during the time that the successful party was wrongfully deprived of the use.” We see nothing in that case which aids the appellant. And in Allen v. Fox, 51 N. Y. 562, it was said that, in an action to recover the possession of personal property, if it has a usable value, the value of its use during the time of its detention is a proper item of ■damages. We see nothing in that case which aids the argument of the appellant. Accepting, as we must, the findings of fact made by the trial judge, inasmuch as the appellant is not in a situation to have a review of them, we ■are of the opinion that the conclusion of law pronounced upon the findings of fact was correct. The judgment should be affirmed, with costs.

Martin, J.,

(dissenting.) This action was against the defendant as receiver of the national Trust Company of the City of Hew York. It was to recover of the defendant the possession of the bonds in question, on the ground that they were unlawfully detained by him. In the complaint it was alleged that the plaintiff owned the bonds; that they came into defendant’s possession; that, upon the plaintiff’s demand, the defendant refused to surrender them, and unlawfully detained them from the plaintiff. This action was based upon a demand upon the defendant for the bonds, and his refusal to surrender them, and not upon any demand made upon the trust company, or upon any unlawful conversion, detention, or act by it. Under this complaint it was held that the plaintiff was entitled to recover of the defendant the sum of $80.86 for the expense of sending a lawyer to New York to demand the bonds of said company before the defendant was appointed receiver, and notwithstanding the fact that the bonds had already been demanded of the company by the plaintiff. It is not apparent to me how this recovery can be upheld. I am aware of no principle that would justify it. The general rule of damages in actions like this is well settled! A party entitled to damages for the detention of personal property is entitled to recover the interest upon its value, or the value of its use, during the period of its unlawful detention. If properly pleaded, special damage may, perhaps, be recovered in such an action, where such damage is the necessary consequence of the defendant’s wrongful act, and is the immediate, and not remote, result of it. I do not think the proof in this case sufficient to justify the recovery of such expenses as special damage. How the expenses allowed in this case can be said to have resulted from the detention of these bonds by the defendant, after he became receiver, T cannot understand. The cases referred to in the opinion of Judge Hardin are clearly distinguished from this, and do not, I think, sustain a doctrine which would justify the recovery in this action. I am of the opinion that the court erred in permitting the plaintiff to prove such expenses, and in including the amount in the damages awarded. For such error the judgment should be reversed.

Judgment affirmed, with costs.  