
    QUINN, Respondent, v. METROPOLITAN ST. RY. CO., Appellant.
    (Supreme Court, Appellate Term.
    December, 1901.)
    Action by Hugh Quinn against the Metropolitan Street Railway Company.
    G. Glenn WTorden, for appellant.
    William J. Boyhau, for respondent.
   SCOTT, J.

The evidence of damage was wholly insufficient, and what evidence was introduced on that subject was improperly admitted. The plaintiff claimed for damages to his wagon and harness, as well as to himself. In his bill of particulars he stated the damage to his wagon at $100. He testified that the wagon was all broken up, by which we understand him to mean that it was so injured as to be worthless. His damage on this count, therefore, was the value of the wagon. He was allowed to testifs-- that he paid $250 for it seven or eight years before, and that two months before the accident he had paid $25 for repairing it. But he did not testify what its value was at the time of the accident, and there is nothing in the evidence to fix the value at that time. As to the harness, he testified that it was worth $15 before the accident; and that two traces were broken in consequence of the accident; but it does not appear how much the value had thereby been depreciated, nor how much it would have cost to repair the harness. There was proof of what he paid to a physician for attending to his own hurts, but no proof as to whether the sum so paid was a reasonable and proper charge. These items, as to which there was no legal proof, being eliminated from the plaintiff’s claim as contained in the bill of particulars, reduces that claim below the amount for which judgment was rendered. There was no evidence that plaintiff had been obliged to hire another wagon. Judgment must therefore be reversed, and a new trial granted, with costs to appellant to abide the event, unless plaintiff stipulates to reduce his recovery to $121.25, in which case the judgment, as so modified and reduced, will be affirmed, without costs. Judgment reversed, and new trial granted, with costs to appellant to abide event, unless plaintiff stipulates to reduce his recovery to $121125, in which event the judgment, as modified and reduced, affirmed, without costs. All concur.  