
    Bertha E. Pettitt vs. N. Y., N. H. & H. R. R. Co.
    No. 40153
    January 18, 1919
    For plaintiff: Eastern, Williams • and Rosenf eld.
    For defendant: Eugene J. Phillips.
   DECISION

DORAN, J.

Mr. Pettitt testified that the auto cost $1250 plus $200 for a new body. At page 24 of transcript, he said, “It was in first class condition. It had been run a year and from May until the last or middle of July and it had just come out of the repair shop * * * the Auto Car Service Station where they rebuild them. * * * It was practically a new machine.”

“Q. What expense was that to you?

A. I don’t remember now.”

The statement, “It had just come out of the repair shop” is indefinite as to whether he refers to the date of the accident or the date of purchase a year and some months before. At pages 32, 43, occurs:

“Q. Who did you buy it from ?

A. The Auto Car Sales Co.

Q. A second hand car?

A. You could not call it second hand. It was a rebuilt car.”

This refers to the time of purchase and not the time of accident and the testimony mentioned above must be referred to the same time, that is, there is not any large indefinite amount for repairs or rebuilding to be added to the $1450 which the witness says the machine cost. Unless the jury added to the cost some amount for repairs to determine value, it would seem that they must have reached the amount of the verdict by some process of figuring down from $1850 or $1650, the amount stated as the cost of the new machine.

New trial granted . unless plaintiff within fifteen days of notice , of this decision remits all damages in excess.of $800. Otherwise the motion for new trial is denied.  