
    Duffus v. Bangs et al.
    
    
      (Supreme Court, General Term, Fourth Department.
    
    July, 1891.)
    Tbover and Conversion—Assessment of Damages—Evidence.
    Where a judgment for plaintiff, in an action for conversion of personal property, has been affirmed on appeal, defendants, on the assessment of damages, may introduce evidence to show that the property is of less value than plaintiff’s witnesses testify to, and defendants are not restricted to evidence elicited by cross-examination of plaintiff’s witnesses, since the quantum of damages was not an issuable fact, and was therefore not determined by the judgment in plaintiff’s favor.
    Appeal from circuit court.
    Action for conversion of personal property by William Duffus against Eli Bangs and others. From an assessment of damages defendants appeal.
    For former report, see 25 N. E. Rep. 980.
    Argued before Martin and Merwin, JJ.
    
      T. K. Fuller, for appellants.
    
      Walter S. MacGregor, for respondent.
   Martin, P. J.

On the trial of tliis case the plaintiff was nonsuited. From the judgment entered thereon he appealed to the general term, where the judgment was reversed, and anew trial granted. 43 Hun, 52. The defendants thereupon appealed from the decision of the. general ternr to the court of appeals, stipulating that, if the order granting a new trial was affirmed, judgment absolute should be rendered against them. The decision of the general term was affirmed, and judgment absolute rendered on such stipulation. 25 N. E. Rep. 980. The case was then remitted to this court, and the judgment of the court of appeals made the judgment of the supreme court. The action was for the conversion of personal property. An assessment of damages was liad at circuit before a justice of this court and a jury. On the hearing, the plaintiff read the testimony of one witness as to the value of the property in question, and rested. Tiie defendants then offered to prove that the property was of much less value than testified to by the plaintiff’s witness, and also to impeach such witness. This evidence was objected to and excluded, the court holding that the plaintiff was entitled to recover $1,300, the alleged value of the property, as the testimony offered by him showed that it exceeded that sum. To this ruling the defendants excepted. Subsequently a motion was made by the defendants to vacate the assessment of damages. On this motion the court held, that the defendants were not entitled to introduce any evidence of the value of the property in question, but could only cross-examine witnesses produced by the plaintiff, and therefore denied the motion. The correctness of these rulings is challenged by the appellants, and presents the only question we are called upon to decide in this case.

It must be conceded at the outset that the judgment against the defendants determined all the issues in the case adversely to them, and established the plaintiff’s right of recovery herein. But we think it did not entitle the plaintiff to the amount of damages alleged, nor to such as might be testified to by such witnesses as he might call, regardless of their credibility. In an action for conversion, the allegation of value is not a traversable one, and even on default, where all the traversable averments are taken as admitted, the plaintiff must prove his damages if he seeks to recover more than a nominal amount. Connoss v. Meir, 2 E. D. Smith, 314, and authorities cited in opinion; Raymond v. Traffarn, 12 Abb. Pr. 52; McKensie v. Farrell, 4 Bosw. 192, 202; De Graaf v. Wyckoff, 13 Daly, 366; starr v. Cragin, 24 Hun, 177. As the allegation of damages in this case was not an issuable averment, it follows that the amount which the plaintiff was entitled to recover in excess of nominal damages was in no wise settled by the judgment awarded by the court of appeals. If the plaintiff was entitled to recover more, an assessment of damages was required to determine the amount. It is not claimed that the plaintiff occupied any better or different position than he would upon an assessment of damages before a sheriff’s jury, or before a court and jury at .circuit, where there had been a default in answering. Thompson v. Lumley, 7 Daly, 74. The rule that on assessment of damages, either at the circuit or before a sheriff’s jury, a defendant may call and examine witnesses, or otherwise prove all proper mitigating circumstances, seems to be well settled. Saltus v. Kipp, 12 How. Pr. 343, 5 Duer, 646; McDonald v. Walsh, 5 Abb. Pr. 69; Gilbert v. Rounds, 14 How. Pr. 46, 51; Warner v. Kenny, 3 How. Pr. 323; Lane v. Gilbert, 9 How. Pr. 150; Hays v. Berryman, 6 Bosw. 679; Thompson v. Lumley, 7 Daly, 79; 3 Wait, Pr. 662; 2 Rum. Pr. 602. We think the court erred in excluding the evidence offered by the, defendants as to the value of the property converted, and that for such error the judgment and order should be reversed, and the motion for an order vacating the assessment of damages should be granted. This determination of the defendants’ appeal renders it wholly unnecessary to consider the question sought to be raised by "the plaintiff’s appeal; it is therefore dismissed, without- costs. Judgment and order reversed, and motion to vacate assessment of damages granted, with $10 costs of motion and costs of this appeal to the appellants.  