Kronold v. City of New York
| Decision Date | 02 October 1906 |
| Citation | 78 N.E. 572,186 N.Y. 40 |
| Parties | KRONOLD v. CITY OF NEW YORK. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by Adolph S. Kronold against the city of New York. From an order (89 N. Y. Supp. 1109) of the Appellate Division, affirming an order of the Trial Term denying a motion for a new trial, plaintiff appeals. Reversed.Theodore Sutro, for appellant.
John J. Delany, Corp. Counsel (Theodore Connoly, of counsel), for respondent.
This action was brought to recover damages for personal injuries sustained by the plaintiff and alleged to have been caused by the negligent failure of the defendant to keep in proper repair a crosswalk at the intersection of Elm and Walker streets in the borough of Manhattan. For the purposes of this discussion we may assume, although we do not decide, that the defendant's alleged negligence and the plaintiff's freedom from contributory negligence were sufficiently established to present questions of fact ot be disposed of by a jury, and we shall confine our discussion to the single question whether the learned trial judge properly refused to submit to the jury the plaintiff's alleged loss of earnings or income as an element of the damages which should be awarded to him if he is entitled to a verdict.
At the close of the evidence the learned trial judge announced that he would not submit to the jury the plaintiff's claim for loss of income, because it appeared from his own testimony that he had $1,000 of capital invested in his business, and there was no evidence to show how much of his income had been derived from his invested capital and how much from his personal efforts. When this ruling had been made, plaintiff's counsel asked permission to put the plaintiff on the stand for the purpose of interrogating him as to the reasonable value of his services, or what compensation similar services would command. This request was refused, and plaintiff's counsel took an exception. The case was then submitted to the jury under a charge in which the income or earnings of the plaintiff from his personal efforts was distinctly excluded from consideration as an element of any damages which might be awarded to him. At the conclusion of the main charge plaintiff's counsel requested the court to instruct the jury that it was for them to consider ‘the nature of the business in which the plaintiff was engaged, its extent, and the particular part therein transacted by him,’ and the court replied: ‘I charge that, with the statement that you are not to take into consideration his earnings as testified to by him, for the reason that he stated that he had capital invested.’ To this modification of his request the plaintiff's counsel excepted, and later he excepted generally to that portion of the charge in which the jury were instructed to disregard the testimony of the plaintiff as to his earnings in his business. These exceptions, when considered in the light of the evidence, are sufficiently definite, we think, to present for our review the question whether the rulings of the court above adverted to present legal error or not, and a brief synopsis of the plaintiff's evidence on this subject will serve to fix the point of view from which that question should be considered.
Prior to the accident the plaintiff had been engaged in the business of selling Swiss embroideries. He took orders from shirt waist manufacturers, Vantine and others who dealt in such articles. These sales were made from designs or drawings procured from sample embroideries. No considerable stock of these embroideries seems to have been carried by the plaintiff, and the capital which he had invested in his business was approximately $1,000. His office expenses, which included rent and the wages of an office boy, did not exceed $600 a year. His net income was about $3,000 a year, and it is fairly to be inferred from his testimon that this was derived chiefly from his personal efforts as a canvasser or salesman, for he stated: When we add to this brief, but comprehensive, statement the suggestion that the amount of the plaintiff's income as compared with the so-called capital invested is, of...
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...from the result of capital investment, or the labor of others. Steitz v. Gifford, 280 N.Y. 15, 19 N.E.2d 661 and Kronold v. City of New York, 186 N.Y. 40, 78 N.E. 572. Further, in the opinion of the court, lost profits, if allowed, would properly belong to the corporation and be a measure o......
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