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Smalling v. Jackson

Supreme Court of New York, Appellate Division

June 4, 1909


Appeal from Suffolk County Court.

Action by Joshua H. Smalling against Harry N. Jackson and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Asa A. Spear, for appellants.

William G. Nicoll, for respondent.

Argued before HIRSCHBERG, P. J., and GAYNOR, BURR, RICH, and MILLER, JJ.


The defendants took up 34 fishing nets which the plaintiff had set in the Great South Bay, and carried them away. This is an action for damages for the trespass, and not merely for the conversion of the nets. The plaintiff claimed the right to recover for damage done to his business by loss of profits, and sought to show the same by a comparison of the size of his catch and the cash receipts therefor during five days before the seizure with those afterwards with the nets that remained, about 70. The case was tried by distinguished counsel, but no objection was made to this evidence, and when it was in no motion was made to confine the damages to a nominal sum. Indeed, the said measure of damages seems to have been the correct one ( Egan v. Browne, 128 A.D. 184, 112 N.Y.Supp. 689), though we do not need to decide that, since counsel recognized it as applicable to the case. This method of ascertaining the damage is more or less loose and uncertain in a case like this, it is true, as wind and weather have to do with the run of fish. But the defendants showed the conditions of wind and weather, so that the basis of comparison was approximated to accuracy, which is about all that can be done in most cases, and the case was submitted to the Justice of the Peace to do the best he could with it. He gave judgment [117 N.Y.S. 269] for $200. That the estimation of the damages caused by a tort or breach of contract is difficult is no reason for denying damages. Wakeman v. Wheeler & Wilson Co., 101 N.Y. 205, 4 N.E. 264,54 Am. Rep. 676.The justice no doubt had difficulty with the evidence as to the actual damages, but even though he had been unable to see more than nominal damage, the case was nevertheless one for punitive damages, for the act of the defendants in seizing and carrying away the nets in the face of the plaintiff's presence and protests was reckless and highhanded. 12 Am. & Eng. Ency. of Law, p. 18; Voltz v. Blackmar, 64 N.Y. 444.They had not the slightest justification or reason for it. They claimed to have acted for the town officials, who had forbidden any one not a resident of the town to fish in the said waters. But the plaintiff was a resident of the town, and well known as such. He was put in the disfavored class of non-residents or outlanders because he hired his nets of non-residents. The case was of that class which always has excited just indignation in courts and juries, and been visited with their condemnation by means of smart money. To borrow the words of an eminent common-law judge (Cowen, J.), applicable in a fair degree to the present case:

" The damages are undoubtedly large, $750. But it is impossible for us to pronounce that they are so disproportionate as, under the circumstances of the case, to indicate corruption or unreasonable passion in the jury. That the jury should have been somewhat transported with indignation by the view which we think they had a right to take of this matter, is highly probable; a consequence which the defendants could hardly escape, were we to send the cause down and order it retried. It must still be tried by men, and by civilized men." Bump v. Betts, 23 Wend. 85.

The judgment should be affirmed.

Judgment of the County Court of Suffolk county affirmed, with costs.

HIRSCHBERG, P. J., and MILLER, J., concur.

BURR, J., reads for reversal.

RICH, J., reads for modification.

BURR, J. (dissenting).

The plaintiff was a resident of the town of Babylon. On Ocober 15, 1907, he hired from Philander Swezey and Ernest Swezey certain fishing nets belonging to them, together with their services as fishermen from the said 15th day of October until the 1st day of December, 1907, for which he agreed to pay them $400. The Swezeys were not residents of Babylon. On the 16th day of November the defendants forcibly took up some of these nets which had been set and were being used for fishing purposes, and deprived plaintiff of the use of them for the remainder of the term for which they had been hired. On the 23d of November the plaintiff began an action before a justice of the peace of the town to recover damages by reason of the ...

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