
    Ten Eyck O. Burleson, Plaintiff, v. Melvin G. Bundy, Defendant.
    
      Damages —measure of, for wine and barrels in conversion after Prohibition took effect — evidence.
    
    Motion for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance, after a trial at the Steuben Trial Term, in January, 1922.
   Per Curiam:

The measure of damages was the value of the wine and barrels at the time and place that they were taken by defendant and, inasmuch as the wine could not at the time be legally sold and as there was no market value, another criterion of value must be adopted, which would be the usable value at the time of the conversion and, in determining that value, the jury may take into consideration the market value of the wine within a reasonable time before prohibition and all the surrounding facts and circumstances, including the fact that, under the law, the wine could not be legally replaced. All concur, except Davis, J., who dissents and votes for affirmance. Plaintiff’s exceptions sustained and new trial granted, with costs to plaintiff to abide the event.  