
    Stearns et al. v. McGinty.
    
      (Supreme Court, General Term, Fifth Department.
    
    December 30, 1889.)
    Measure of Damages—Injury to Stock.
    In an action for damages sustained by reason of the escape of defendant’s buck lambs into plaintiff’s flock of sheep, whereby certain of their ewes were got with lamb out of season, so that they dropped their lambs in the cold weather of winter, the measure of damages is the difference between the value of the ewes for breeding and other purposes as they were at and as they were after the trespass.
    Appeal from Allegany county court.
    Action by John Stearns and Charles C. Boyd against James McGinty for damages to property. On trial before a justice of the peace, there was a judgment for plaintiffs, and on appeal to the county court the judgment was affirmed, and defendant appeals.
    Argued before Barker, P. J., and Dwight and Macomber, JJ.
    
      Dolson & Orcutt, for appellant. L. C. Van Fleet, for respondents.
   Macomber, J.

This action was brought to recover damages alleged to be sustained by the plaintiffs by reason of the escape of 3 buck lambs from the premises of the defendant to those of the plaintiffs, by reason whereof such buck lambs got 32 ewes belonging to the plaintiffs with lamb out of season, so that their lambs were dropped during such cold winter weather as that 29 thereof were frozen to death. The plaintiffs did not own the ewes in com- • mon, but held them in common for the purposes of raising lambs. One of the plaintiffs owned the land upon which the ewes were pastured, while the otlier had no interest therein. Their common interest was in maintaining the sheep upon the lands of Stearns, and procuring an increase thereof, in which they should share in certain proportions. Ho question was raised below that the action could not be maintained jointly by these parties.

The only matter in controversy seems to be the measure of damages which is applicable to the facts of the case. It was assumed by counsel in the county court, as well as in this court, that the measure of damages adopted by the justice of the peace was the value of the lambs so perishing by reason of being born in very inclement weather; and the learned county judge has written an elaborate opinion sustaining the contention that such rule was the true one. An inspection of the record, however, shows that this question of the measure of damages has no proper place in this appeal. The evidence leads to the conclusion that the escape of the defendant’s rams would quite naturally lead to the result that actually happened, namely, the pregnancy of the ewes and the dropping of this increase out of season, in the latter part of February and the forepart or the middle of March. The cost of raising lambs until they become marketable was also shown. * The proportion of lambs that would be lost when born in proper season was likewise shown. All facts relating to the measure of damages in such cases seem to have been gone into on the trial, save only the likelihood of injury to the mother when lambing out of season. Much of this evidence is now objected to, and is claimed to be directed to an erroneous measure of damages, as before stated. No exception was taken to any of it before the justice; and we are unable to find, the origin in this printed record of the idea that the trial court found, as a matter of fact, that the damages were to be measured by the value of the lambs at the time they were unseasonably dropped. The true measure of damages, if we must state it, would be, in this case, the difference between the plaintiff’s ewes, for breeding and other purposes, as they were at and as they were after the time of the trespass. There is nothing in the judgment to show that the justice of the peace adopted any other criterion. He presumably took into consideration all of the testimony of the witnesses, and probably, to some extent, his own observation of the matter, aided, doubtless, by consultation with his neighbors. His judgment is as follows: “On the 21st day of November, 1885, after waiting four days, and after due deliberation, I render judgment in favor of said plaintiffs, and against said defendant, for the sum of $23.37.” There is nothing in the appeal papers to show that he arrived at this result by any erroneous methods. The niceties of the complex question of the measure of damages did not deflect his judgment. The judgment should be affirmed, with costs. All concur.  