
    George A. Sipp, Respondent, v. The Siegel-Cooper Co., Appellant.
    (Supreme Court, Appellate Term,
    March, 1898.)
    Evidence — An offer of compromise is not a proper basis of value. •
    An offer to compromise a,claim for the use of trucks and wagons is not a proper element in reaching a conclusion as to the fair value of the use. ■, ■
    Appeal from a judgment of the Thirteenth Judicial District Court, in favor of the plaintiff.
    Rose & Putzel, for appellant.
    J. C. Van Loon, for respondent.
   Gildersleeve, J.

The issue herein presented by the pleadings and the testimony was as to the compensation which plaintiff was entitled to receive for the use of two trucks and three delivery wagons for, at the most, one full day. It was the claim of the. plaintiff that the defendant admitted that the use of the trucks and wagons was of the value of $35. It was for this amount that the learned trial justice rendered judgment in favor of the plaintiff. A careful examination of the record fails to disclose any evidence to support this judgment. The evidence shows that plaintiff made a claim against defendant for $75, and that the correctness of this claim was disputed by defendant; and it further appears that, subsequent tó the commencement of the action, defendant instructed its lawyers to pay $35 to the plaintiff, on obtaining from him a release. It is the contention of the defendant that this offer was made in order to .compromise the particular claim, for which this action Was brought, as well as other differences that existed between ’ the parties to the action. However that may be, no payment was made and no settlement had. The action was not brought to recover upon the express promise of the defendant to pay the sum of $35, but was brought, as we have seen, to recover payment for the use of the two trucks and three parcel wagons, as appears by the record of the oral pleadings. Plaintiff claims, correctly, that the question of value was one of fact to be found by the justice before whom the action was tried. It would seem that the justice considered the defendant’s letter, which was nothing more than a proposition to compromise, and the testimony as to what transpired between the parties, as evidence of the fair value of the _nse of the trucks and wagons; and consequently, he fixed, as we have said, the recovery at $35. This conclusion is clearly against the weight of evidence. There is no sufficient evidence to support such an award. The preponderance of evidence shows undisputably that the fair value of the úse of the trucks and wagons in question did not exceed the sum of $7.

Eor the reasons above stated, the judgment should be reversed, and a new trial ordered, with costs to abide: the event.

Beekman, P. J., and Gteoebioh, j., concur.- . .

Judgment reversed, and new trial ordered, with costs to abide event.  