(9 App. Div. 141.)

#### McGRATH v. THIRD AVE. R. CO.

(Supreme Court, Appellate Division, Second Department.

October 6, 1896.)

1. Damages—Evidence—Cause and Effect.

A finding that the death of plaintiff’s horse was caused by a collision with defendant’s street car is not sustained by the evidence, where it appears that the horse, which was thrown down by the force of the collision, immediately got up, was again attached to the wagon, and driven off, without showing any appearance of injury, and that he was after-wards afflicted with a sore throat, and died three weeks after the accident; there being no evidence of any connection between- the sore throat and the accident.

'2. Appeal—Modification of Judgment.

Where a recovery, in an action for injuries to the person and to property, is had as to both causes of action, as to one of which plaintiff was not entitled to recover, the appellate court may modify the judgment by deducting the erroneous item.

Appeal from trial term, Queens county.

Action by John McG-rath against the Third Avenue Railroad ■Company for personal injuries, and for injuries to plaintiff’s horse, wagon, and harness, alleged to have been caused by defendant’s negligence. From a judgment for $3,234.37, damages and costs, and from an order denying a motion for new trial, made on the .minutes, defendant appeals. Modified.

Argued before BROWN, P. J., and CULLEN, BARTLETT, and HATCH, JJ.

B. Franklin De Frece and William N. Cohen, for appellant.

Thomas C. Kadien, for respondent.

*94PER CURIAM.

Upon the main question, of the negligence of the defendant and of contributory negligence upon the part of the plaintiff, we are of opinion that the evidence is sufficient to uphold the recovery for the personal injuries sustained. It would be of little service to here set down the process of reasoning by which this result is reached, as it simply involves the application of well-established rules to slightly differing proof.

So far as the injury to the horse is concerned, a different question is presented. There does not seem to be any sufficient evidence to show that the death of the horse was a consequence of the accident. The evidence upon this point tended to establish that the horse was thrown down by the force of the collision, immediately got up, was again attached to the wagon, and driven off. There was no appearance of injury to the horse, and he exhibited none as he moved off. The only testimony showing its subsequent condition comes from the plaintiff, and is, in substance, that after the accident the horse was “pining away”; that he was afflicted with a soreness of the throat, which was the only trouble; and that he died in three weeks. The evidence does not show that the horse was injured in the throat or elsewhere, nor was any attempt made to show connection between any injury and the disease of which he died. Inference from the testimony that the throat trouble was the result of the accident we do not think is permissible, as such a result would be quite unusual, and is in no sense a natural consequence. The proof of the value of the horse is unsatisfactory, and much of the testimony bearing thereon was incompetent. The court declined to charge that there could be no recovery for its value. Counsel for appellant raised all of thesé questions upon the trial, and now insists that, for the errors thus committed, the judgment must be reversed, and a new trial ordered. This result would inevitably follow if we were unable to relieve defendant from the consequences of the error. But the value placed upon the horse clearly appears; and if we deduct this amount, as we may do (Ludlow v. McCarthy, 5 App. Div. 517, 519, 38 N. Y. Supp. 1075), then defendant will have sustained no injury therefrom. The value of the horse was placed at $200. This sum should be deducted from the amount of the recovery.

The judgment will therefore be modified by deducting therefrom the sum of $200, together with a proportionate amount of the extra allowance, and, as thus modified, should be affirmed, without costs to either party in this court.