
    George Neddo, Respondent, v. Charles W. Sanderspree and Aubrey E. Meyer, Appellants.
    Third Department,
    November 16, 1910.
    New trial—judgment entered on erroneous verdict reversed for mistrial.
    .Where in an action to recover damages for the failure of the defendant to return a boat belonging to the plaintiff in good repair, the proof limits the cost of placing the boat in good repair to §300 but the jury find a verdict for §400 and, exceeding its authority, state that the boat which is then in the plaintiff’s possession shall be given to the defendant, a judgment for §400 will be reversed for mistrial.
    Appeal by the defendants, Charles W. Sanderspree and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 22d day of January, 1910, upon the verdict of a jury, and also from an order dated the 10th day of May, 1910, denying the defendants’ motion for a new trial made upon the minutes.
    
      O. A. Dennis, for the appellants.
    
      William Sears, for the respondent.
   Houghton, J.:

A boat, known as a lighter, being used by the defendant Sander-spree, and belonging to the plaintiff, had sunk, and the defendants gave the plaintiff a bond in the sum of $400, conditioned to raise and restore it to the plaintiff in good repair on or before a certain date.

" The plaintiff in his complaint set forth the bond and alleged that the boat was not restored to him on the date mentioned in good condition, but on the contrary, was left in Lake Champlain to be recovered by the plaintiff, and that he did recover the same in a damaged condition, and greatly depreciated in value, all to his damage of $400.

The plain tiff’s,cause of action as alleged in his complaint is clearly not on the bond nor to recover the value of the boat, but for damages in failure to deliver in good repair. The learned trial court submitted the case to the jury on this theory and instructed them that they might find damages for the plaintiff based upon the difference between the value of the boat in good order and condition and its value in the condition it was when delivered to or recovered by the plaintiff. Some evidence was permitted on the trial that the boat was never delivered to the plaintiff at all, but the plaintiff did not ask to amend his complaint, which alleged specifically that the boat was in his possession and that he had recovered it in a damaged condition. The defendants’ contention was that the boat was delivered to the plaintiff in good condition and in good repair at about the time provided by the bond. The plaintiff testified that in good repair the boat was worth $400 to $500 and that it would cost $250 to $300 to put it in proper repair. This was the utmost any witness claimed the damage to be. The verdict as first rendered by the jury was as follows : “Wefind for the plaintiff $400, and that the defendant have the lighter.” The court remarked: “ Tour verdict then is for the plaintiff, $400 % ” to which the foreman of the jury assented. ' Judgment was entered for that amount. •

In view of the statement in plaintiff’s complaint that he had the boat in his possession at the time of the commencement of the action, and his proof as to the cost of repair and the charge of the court, it is quite manifest that the jury did not intend to give the plaintiff $400 damages to the boat, which the plaintiff still owned and had in his possession. Of course the jury by their verdict could not transfer title to the boat from the plaintiff to the defendants as they attempted to do. Their assent to the rendering of a verdict for $400 was apparently under a misapprehension and was not sustained by the evidence.

We are of the opinion that there was such a mistrial that the judgment and order should be reversed and a new trial granted, with costs to the appellants to abide the event.

All concurred.

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