
    James D’Olier, Respondent, v. The New York Central & Hudson River Railroad Company, Appellant.
    Values—Evidence of value — Offer to sell or. price obtained at sale — When not evidence of value.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, seventh district, borough of Manhattan, after a trial before the court without a jury.
    Charles C. Pauldihg, for appellant.
    Ezra P. Prentice, for respondent.
   Scott, J.

The plaintiff sues for the damage suffered by certain cases of cotton yarns while in course of transportation by defendant. No question is made as to defendant’s liability, the only contest being as to the amount of the loss. The shipment consisted of fourteen cases of cotton yams on cones. Upon arrival at the place of destination, five of the eases were broken and the yams contained therein damaged. So far as appears from the evidence, the other nine cases were intact and uninjured, and there is not the slightest evidence that the yarns contained in them were damaged at all. The plaintiff’s assignors, owners of the yarns, made not the least effort to ascertain the condition of the yam in the uninjured cases, but offered the whole shipment for sale as damaged goods, realizing but ten cents a pound for the lot; whereas, the value of the sound yarn before shipment had been eighteen cents a pound. For the difference between the two prices the plaintiff has recovered judgment, the only evidence as to the value of the goods after the injury being the price at which the yam was sold. In awarding damages as if the whole shipment had been damaged, the court followed the speculative and fanciful testimony of plaintiff’s witnesses to the effect that the fact that a few cases out of a shipment had been injured would so affect the reputation of the whole shipment in the eyes of the trade that a fair price could not be obtained, even for the uninjured merchandise, a proposition which appears to be quite unreasonable. Furthermore, the evidence of selling value is most unsatisfactory. The plaintiff relies upon Parmenter v. Fitzpatrick, 135 N. Y. 190, as an authority for relying upon the selling price as some evidence of value. That case is authority for the proposition that, under some circumstances, proof of the price obtained at a tona fide sale will tend in the direction of proving or establishing a market price and, therefore, be some evidence of value. But it is essential that the sale shall be tona fide and not in any way forced. In the present case the evidence leaves a strong impression upon the mind that the sale was not bona fide in the sense that plaintiff made no effort to realize a good price. On the contrary, the goods were offered in such a manner as to discredit them, and no effort whatever was made to ascertain the extent of the damage or how much of the shipment was uninjured. The result is that, while only five cases out of the fourteen were injured at all, and all of the yams comprised in the shipment save a very few yards were actually used by the purchaser, the defendant has been mulcted in damages to an amount considerably greater than the whole value at the point of shipment of the five cases which were damaged. If the plaintiff’s assignors suffered the loss for. which they sue, it is because they took no pains to reduce their damages, or to obtain a fair price for so much of their shipment as was uninjured.

Tbuax and Bischoee, JJ., concur.

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