
    Charles F. Meyer, Appellant, v. The Bermuda Atlantic Steamship Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    April, 1912.)
    D.amages — measure for breach of contract in general — measure for torts—loss of or injury to property — evidence as to damages — evidence admissible to show loss of profits — evidence.
    Where, in an action by the chief steward of a steamship to recover ■ compensation, the defendant counterclaims for loss of table ware and linen belonging to the ship admitted to have been placed in plaintiff’s care, and it appears that the testimony of defendant’s chief witness, after examination of certain exhibits, as to the value of the articles missing, as between the list receipted for by plaintiff and the inventory taken at the time of his discharge, though not objected to, was palpably given under a misapprehension, the value as testified to being in fact based on the difference between the number of articles originally bought for the ship and said inventory, of which a large number had been lost before plaintiff had been appointed chief steward, the measure of damages was improper, and a judgment entered thereon will be reduced acordingly.
    It is the proper practice to offer the whole of an exhibit in evidence.
    Seabtjry, 'J., dissents.
    Appeal by plaintiff from a judgment in favor of defendant on its counterclaim, entered in the Municipal Court of the city of Mew York, borough of Manhattan, first district, after trial by a judge without a jury.
    Leonard McGee, for appellant.
    Israel B. Liebson, for respondent.
   Bijur, J.

This action was brought by plaintiff to recover moneys alleged to be due him on account of compensation as chief steward of a steamship and for a balance of an adjustment of his accounts. The correctness of the decision against him on his own claim is scarcely raised on this appeal.

The counterclaim was interposed to recover losses of tableware and linen belonging to the ship and admitted to have been placed in plaintiff’s care..

On the question of his responsibility for the loss, it seems to me that the agreement between the parties was properly interpreted by the court below as placing the liability in. the first instance upon the plaintiff with the right on his part to charge the whole or any part of the loss upon his subordinate stewards in a proper case. dSTo attempt having been made by plaintiff to establish such liability of others, his own responsibility stands unimpaired.

A nice question is raised as to the amount of the loss; .Defendant’s chief witness on this score, when asked to examine certain exhibits and to state the value of the articles missing as between the list receipted for by plaintiff and the inventory taken by the ship’s officers at the time of plaintiff’s discharge, gave."the value of the silverware lost as $395.27 and of the linen as $232.97. An examination of defendant’s exhibit D shows that these figures were the summation pf the detailed valuation put upon the difference in the number of articles listed as originally bought for the steamship and the amount on hand as expressed in the inventory." I cannot shut my eyes to the fact that this testimony given by the witness, although not objected to, was palpably given under a misapprehension, and that the gross amount testified to- by him, namely, $628.24, was based not upon the difference in the number of articles between plaintiff’s receipt and the inventory, as it should have been, but between the number of articles originally bought for the steamship and the inventory. As the exhibits show that the plaintiff receipted for a considerably smaller number of these articles than were originally purchased for the steamship — in other words, that a large number had been lost before his appointment as chief steward — the measure of damage is plainly an improper one.

Plaintiff’s position in regard to how much of exhibit D is in evidence is rather inconsistent, he claiming at one point that only the column which shows the inventoried number of articles is in evidence, and yet, at another point, he appeals to the entire exhibit. On examining the testimony, I find that the offer in evidence is capable of the construction that the entire exhibit was so placed, and as that is the proper practice (see Hanlon v. Ehrich, 178 N. Y. 474, 480; Larue v. Rowland, 7 Barb. 107, 112) I think'that the entire exhibit should be regarded as before the court.

A careful examination of the exhibits and a calculation of the correct differences lead me to the opinion that a¡ manifest injustice has inadvertently been done to the plaintiff, and that the amount of the counterclaim and consequently the judgment should be reduced by $150.

If the defendant will consent to a reduction of the judgment in its favor to $350 and costs, the same will be affirmed at that amount, without costs of-.this app'eal; otherwise the judgment will be reversed and a new trial ordered;.-with costs to the appellant to abide the event.

Guy, J., concurs.

Seabury, J. (dissenting).

• It -is-'my opinion' that the evidence adduced upon the question of damages is wholly insufficient to sustain the judgment. As the amount of damages suffered by the defendant cannot be accurately ascertained from the record we are in no position to "modify the judgment that has been rendered.

"In my opinion the ju’dgment should be reversed aiid a new trial ordered,, with costs to the appellant to abide the event.

Judgment affirmed, if defendant will consent to a reduction to $350 and costs; otherwise judgment reversed and new trial ordered, with costs to abide event.  