The action is conversion to recover the value of sixteen horses which, it is alleged, the defendant unlawfully took from the possession of the plaintiff. The defendant, who was the sheriff of the county of Erie, justified under a warrant of attachment issued in an action against one Johnson, and seized and sold the property at Buffalo upon the assumption that it belonged to said Johnson. At *507the close of the evidence each side moved for a direction of a verdict and the court' ordered a verdict for the plaintiff, submitting, however, the question of damages to the jury. There is abundant evidence to sustain the recovery.
These horses, which were for carriage use, were purchased for the plaintiff in the west for the Liverpool market, gathered together at Chicago and Consigned to a man named Johnson in Liverpool pursuant to a through contract by rail and steamer, and were seized by the defendant while in transit. The plaintiff had long been a dealer in carriage horses for this market, and was familiar with the value of this class of horses in Liverpool.
He testified in .his own behalf, arid after his experience and familiarity with the business had been fully proven, he "was permitted, under objection and exception, to answer the following questions : “ Q. Assuming that the sixteen horses in question, attached by the defendant at'Buffalo, H. Y., 'on the 16th day of January, 1904, were American' carriage horses, sound and in prime condition, weighing 1,150 pounds or thereabouts each, and averaging that, weight, of the average age of six and one-half years, none over eight and none under five years of age, one of which was a blue roan in color, one chestnut, two black, and the remainder browns and bays, what, in your opinion, were they reasonably worth in the. market at Liverpool, in the latter part of Januaryand in February, 1904 ?” The deseriptiori contained in the hypothetical question tallies fairly well with that proven by the witnesses. -
I think the question is competent. Great latitude has been allowed to this class of testimony given for the purpose of enlightening the jury upon the question of value. I think the testimony is of the same grade as where a witness w'as permitted to testify to the value of a clock which he had never seen, as in Whiton v. Snyder (88 N. Y. 299, 308), or as to the value of articles destroyed by fire by a person who had never seen them but had purchased similar articles (Rademacher v. Greenwich Ins. Co., 75 Hun, 83), or to the value of a boiler, engine and machinery the witness had never seen (Orr v. Mayor, etc., of New York, 64 Barb. 106), or in an action for work, labor and services where the services are described in a hypothetical question to the witness who had never seen the plaintiff work and knew nothing of the character of the services claimed, *508except' as they were contained in the question framed for him (McCollum v. Seward, 62 N. Y. 316 ; Seymour v. Fellows, 77 id. 178.)
There, is abundant authority for the proposition that this class- of ’ testimony does not depend upon the personal observation "of the. witness. In Ingham’s Law of Animals the writer says, at page 644: “ Witnesses who are familiar with the ldnd of animals sued -for are competent to testify as to their - value, without having ever seen them and without being experts.’-’ So., in Lawson on Expert and Opinion Evidence (2d ed. p. 485).: 6 It is not necessary to make his opinion competent that the witness should have been acquainted with the particular thing whose value lie testifies to, or even that he should have seen it.”
In Slocovich v. Orient Mut. Ins. Co. (108 N. Y. 56) the action was to recover on an insurance policy on a ship which had been burned. The vessel had been long-in use, hut an expert who had never seen it was permitted to testify as.to its valué from a description and information furnished him. . The court say (p. 64): “It Was not á sufficient objection to the competency of this witness that' he had no personal knowledge of the ship. • An éxpert is qualified, to give evidonce-as to things which he has never seen. He may base an opinion upon facts, -proved by other witnesses, or. upon facts assumed' and embraced within the case. , Questions may he put to him assuming the facts upon which he is asked to base his judgment and express ah opinion.” .-...'
■ In Smith v. Indianapolis & St. Louis R. R. Co. (80 Ind. 233) it was necessary to prove the value of cows which ■ had been killed, arid proof of their value by experts who had never seen them was held to be competent. (See, also, Whitbeck v. New York Central R. R. Co., 36 Barb. 644.)
These' horse's had never been in Liverpool They had been ■ converted and sold by the-def endant. The plaintiff (gave the best proof available to him. - He could not bring experts from Liverpool, because they had never seen the horses and, therefore, were not competent to testify as to their value under the rule adopted by the majority of this court. All that was required of the' plaintiff was. to furnish whatever proof he could obtain on this' subject.
The test in this class of cases is the reasonable accuracy of the *509description of the property contained in the hypothetical question. If fairly described the evidence is competent, but the weight of it is for the jury. There would be no greater variation in thé value of carriage horses given by expert witnesses than of a piece of real estate to the value of which witnesses testified after ah inspection ' of it.
But in this case the question is wholly academic. These horses were purchased by Job. M. Johnson, a disinterested witness. He was an expert in the value of carriage horses, was familiar with the Liverpool market and had seen these identical horses. He also tes tified as to their value, and there was little difference in his estimate and that given by the plaintiff. The verdict of the jury was less than the sum stated by Johnson. The defendant gave no testimony whatever upon the subject, although he had possession of the horses. There was, therefore, abundant competent testimony uncontradicted which justified the verdict. Even if the testimony of the plaintiff referred to was incompetent, the judgment should not be reversed or any reduction made, as there was no evidence given by the defendant to impeach that given by the witness Johnson, who was competent to testify.
The rule has often been enforced that if there is competent testimony to sustain a question of fact the judgment will not be reversed because of the reception of testimony which is- inadmissible if the defeated party has offered no proof to controvert the competent evidence.
The judgment and order should be. affirmed, with costs.
Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein.