
    (26 Misc. Rep. 181.)
    GARDNER v. BAER et al.
    (Oneida County Court.
    January, 1899.)
    1. Nominal Damages—Tort.
    . In an action for wrongfully taking, and depriving plaintiff, for a day and two nights, of the use of his horse and wagon, plaintiff’s undisputed testimony was that the use of the property would ordinarily be worth $5, and that at that time they were worth to him $15. Held, that a verdict of 6 cents would be set aside, as contrary to the evidence.
    2. Appeal—Review.
    Where a party’s right to a verdict allowing substantial damages depends on his own testimony, the fact that he is an interested witness will not affect his right to have a verdict allowing only nominal damages set aside, where there was no conflict in the evidence, and no circumstance from which any inference against the fact testified to by him could be drawn.
    Appeal from justice court.
    Action by Charles Gardner against William A. Baer and another. From a judgment for defendants, plaintiff appeals.
    Beversed.
    D. F. Searle, for appellant.
    M. H. Powers, for respondents.
   DUNMOBE, J.

There is no question but that the verdict in this case was against the evidence. Plaintiff was entitled to recover something more than nominal damages. The use of the plaintiff’s horse, wagon, and harness was worth something. Plaintiff was deprived of their use for a day and two nights. Plaintiff testified that their use would ordinarily be worth $5, and that at that time they were worth to him $15, because he wanted to go to see a sick girl. This evidence was not disputed. It is certainly reasonable that the use was worth more than 6 cents. Plaintiff was wrongfully deprived of that use from Saturday night till Monday forenoon. It was urged in behalf of defendants that the horse was without food and shelter, and defendants took the horse as an act of kindness to the animal. There is nothing in the evidence to warrant that inference. It was at a time of year when an animal would not suffer for lack of shelter. Before taking the horse, defendants sent into the house a request that plaintiff take them home; and, getting no response, they took plaintiff's horse to take themselves home, leaving plaintiff to get home as best he could. They seemed to be concerned, not about the horse, but about themselves. I do not think this case is within the rule that a judgment for defendant will not be reversed where the plaintiff' is entitled to only nominal damages, laid down in Cady v. Fairchild, 18 Johns. 129, Stephens v. Wider, 32 N. Y. 351, and Funk v. Publishing Co., 76 Hun, 497, 27 N. Y. Supp. 1089.

The evidence of plaintiff as to the usable value of the property was not disputed. It certainly had a usable value. It is true this evidence was given by plaintiff, who was interested; but it seems to me to come within the rule laid down in Kelly v. Burroughs, 102 N. Y. 93, 6 N. E. 109, in which the court said:

“The mere fact that the plaintiff, who testified to important particulars, was interested, was unimportant, in view of the fact that there was no conflict in the evidence, or any thing or circumstance from which an inference against the fact testified to by him could be drawn,”—citing Lomer v. Meeker, 25 N. Y. 361.

The jury were not bound to find the exact amount of damage testified to by plaintiff; but they had no right to find that plaintiff had sustained no damage at all. It is true, the amount involved is trifling, but as was said in Edmondson v. Machell, 2 Term R. 4, and quoted in Funk v. Publishing Co., 76 Hun, 500, 27 N. Y. Supp. 1091:

“I have always supposed that the party who has been affected by an error, be the extent of that injury ever so small, can require of us ex debito justitise to correct it.”

Every citizen whose property rights are invaded is entitled to the protection of our laws, and the humble citizen whose interests and injuries are small equally with the wealthy citizen whose interests and injuries are large. The judgment must therefore be reversed, with costs.

Judgment reversed, with costs.  