The plaintiff sought in this action to recover damages, sustained by the sinking of the canal boat “ Delia, D. Lafayette,” which was caused it was alleged by the defendant’s, tortious conduct. The trial was distinguished by a severe conflict of evidence on all the material issues springing from it, as well as upon the controlling or .real issue which was as stated by the learned justice presiding at the trial to be whether the defendant induced the plaintiff to send the boat to the wharf where the injury was sustained, or requested her to send it there and thereupon, having failed to unload it within eight days, caused it to be placed in a dangerous position where it was struck by ice and sunk, and without any negligence on the part of the plaintiff. This issue was the result of statements by the witness for the plaintiff, that she refused to take the boat to the place indicated, at the request of the defendant, until he promised ito indemnify her against any injury from floating ice, of which apprehension was entertained. The contract was made with the .sailing master or captain, but in her hearing. The vessel was loaded with coal and her hull and cargo were insured. She was raised after the .injury and repaired, and some money was received from .the insurance company in which the insurance was secured, but it was not enough, it was averred, to compensate the plaintiff for the loss sustained by injuries to hull and cargo.
Several questions relating to the latter item have been suggested ,and argued, as well as to the former item, but in the view that is taken of one exception to evidence and to the charge on the same subject, it is thought unnecessary to consider them. Sufficient for the day is the evil thereof. The 'boat as already- said, was raised and repaired. 'The stipulation on that subject is not as disingenuous :as it might be, because ,of the word “ temporarily,” but it is connected with the admission that the boat had been in use since the accident, that is up to the time of the trial, as appears from the record and is sufficient for -the purpose, '
The conclusion is “that the boat I^aiayette had been temporarily •repaired and had been in use since the time of the accident.” The .object or design of this form may or may not be determined cor .■rectly as matter of impression, but the effect must be the same as if the word temporarily had not been employed. The fact that *585tbe boat was in use can bare no other interpretation than that she was in proper condition to carry on the business to which she was to be devoted, and that the repairs, though designated as mentioned, were in truth and in fact substantial. If they were in the proper • sense temporarily made, which would indicate that they were imperfectly and insufficiently made, and only pro tempore, as contradistinguished from fully and thoroughly made, it was the duty of the plaintiff to show it, and thus lay the foundation for the proof by estimate, which then would have been admissible, as we shall see.. This was not done, and though such a thought may be regarded as purely hypothetical, it nevertheless seems that the word temporarily was used in order to avoid the objection that might be successful against the proof of an estimate by which- it was sought to show the necessary expenditure for repairs.
This was an important element of the controversy, for if the defendant, on the evidence, was found to be liable by the verdict of the jury on the main issue, he would be responsible, as one item of damage for the cost of the repairs such as would put the boat in the same condition as it was when the injury was sustained. Thé only proof on that subject given upon the trial was the estimate made on the subject, and to which objection and exception was taken.
There can be no doubt that if the repairs be not made, the estimates of persons having the capacity to make them are competent to prove the item, but when the repairs have been made the estimates become secondary and the proof of the expense must be given. There is no reason why this rule should be departed from in such a case as this. There do not appear to have been any extraordinary circumstances attending the repairs, whatever they were, which excuse the presentation of the proof mentioned, and as the estimate was placed at $2,000, it became an important, if not controlling, feature on the subject discussed. It may have exceeded the amount actually spent. There is no pretense that it was not sufficient for the purpose. The adjudications bearing' upon the question intimate, if they do not affirm, the proposition that estimates are valueless when the repairs have been made, and are therefore susceptible of the better proof — indeed the certain proof of the expense incurred. (The Sam Gaty, 5 Bissell, 190; Gedney v. *586The Minnie, 26 Fed. R,., 860; The City of Chester, 27 id., 399; The Mayflower, 1 Brown’s Ad., 393; The Schooner Catherine v. Dickinson, 17 How. [U. S.] Rep., 170.)
In tbe last case it was said’: “But where tbe vessel bas been raised and repaired, or is undergoing repairs, as in tbe case of tbe San Louis, there is no necessity for resorting even to tbe opinion and estimates of experts, as to tbe probable expenses, for as to these tbe reasonable expenses incurred in raising and repairing her are matters of fact that may be ascertained from tbe parties concerned in tbe work.”
Tbe defendant covered tbe objectionable evidence by exception duly taken when tbe question as to tbe estimates was asked, and also by requests to charge as follows:
“ XVII. Estimates of tbe amount required' to repair her, made before she was repaired, and not afterwards expended or incurred, are not items of damage against tbe defendant.
“ XVIII. There is no evidence in tbe case of sums expended for repairs, therefore, this item cannot be taken into consideration by tbe jury.”
And, further, by an exception to that part of tbe charge in which tbe jury were instructed that they were to determine, upon all tbe evidence, what tbe cost of tbe repairs would have been to restore tbe boat to tbe condition in which she was before tbe accident.
In a controversy so marked as this was upon tbe trial by antagonisms of evidence, tbe rules should be strictly enforced to prevent injustice. Indeed, it may be said that when such a spectacle is presented comparatively insignificant circumstances become important factors, and have weight sufficient to formulate serious results And it may be said, further, that in such a case estimates should never be permitted to usurp tbe place of positive testimony when it can be furnished, and which, if allowed, may favor a speculative or hypothetical award of damages.
For tbe reasons assigned tbe judgment should be reversed.
Ordered accordingly, with costs to tbe appellant to abide tbe event.
VaN BRUNT, P. J., and DaNiels, J., concurred.. Judgment reversed, new trial ordered, costs to appellant to abide event.