(concurring.) In my opinion the evidence showed the damages to be substantial, and not nominal. Had I been a juror, I should have been in favor of awarding something more than nominal damages. I agree, however, that the measure of damages was entirely within the discretion of the jury. The evidence does not fix, with certainty, any sum below which the jury would not be warranted in giving in making an award. To the authorities on this point cited by my learned associate may be added Henderson v. McReynolds, (Sup.) 14 N. Y. Supp. 351. The jury acted within its province, and its verdict should not be disturbed for the reason that the court entertains an opinion not in accord with that of the jury on the question of damages. I cannot agree with my learned associate when he says: “It was evident throughout the trial that the trouble had its origin in an honest mistake, of which the plaintiff was the responsible author.” Under the evidence, the jury were justified in placing the responsibility of the acts that were the inception of the trouble with either party. The evidence leads me to believe they originated with the defendant’s servants. I agree in the result reached by my learned associate.
The judgment and order appealed from should be affirmed, with costs.