The opinion
Spbing-, J. (dissenting) :
On the 12th of January, 1899, the appellant purchased the property in question for $500. Within ten days he sold it to one Terbell who shortly after sold it at public auction and private sale. There was a pointed conflict on the trial in the testimony over the value of this, property. Harry J. Sternberg, a witness on behalf of the appellant, testified that he had assisted Terbell in selling this property at private sale and at auction, and was asked: “Do you recollect what it was sold for ? ” The objection made by respondent’s counsel was sustained and an exception taken.' Terbell was then called on behalf of the defendant and the following occurred: “ The Oourt: What do you propose' to show by this witness ? Mr. McNamara: I propose to show what this stock brought at private • sale immediately after the auction sale that has been testified to. The Court: I will exclude the testimony and make the same ruling as my last. You may have your exception.” '
I think the exclusion of this testimony was error.
The object of all of the testimony on this branch of the case was *505 to furnish the jury with proof as to the market value of this property. An actual bona fide sale, whether public or private, is one method of ascertaining that value; it affords more enlightenment to the jury than the opinions óf experts. In Parmenter v. Fitzpatrick ( 135 N. Y. 190 ) the action was for the conversion of a stock of goods in a store in Plattsburg, N. Y., which was subsequently to the alleged conversion taken to Syracuse and Utica, and about a year later sold at private sale. On the trial evidence offered to show what the goods sold for at this sale and that the price received was the best obtainable, was excluded. The Court of Appeals in reversing the judgment solely on the ground that the evidence excluded was 'competent, after declaring the general rule that the market price of the property at the place of the conversion is usually the true measure of value, add (at p. 196): “ The market price of personal property is nothing but the general or ordinary price for which the property may be bought and sold. There is no particular number of sales necessary to be proved before such price can be said to be established. It seems plain, however, that proof of the price obtained at an actual sale, made bona fide, and not a sale which was in any way forced, would tend in the direction of proving or establishing a market price, and hence would be some evidence of the value of the property sold. It might not, and indeed it is not claimed to be conclusive, but it seems to be competent upon that question. * "* *
In the ordinary case of purchase and sale of projrerty, the fact that the purchaser and seller have met and agreed upon a price, and actually bought and sold the property at that price, ought to be in the nature of things some evidence of ■ the value of that property, which has thus changed hands in a bona fide transaction. ”
And again (at pp. 197 and 200): “ But the reason for the admissibility of this kind of evidence does not and cannot rest upon the fact that the sale was by auction, but upon the fact that there was an actual sale, a real transaction between the buyer and seller. The price given and obtained upon such actual occurrence is naturally regarded as some evidence of the value of the thing bought and sold. There is no particular force in the fact that the sale was by auction which tends to prove the value of the thing sold, any more than any bona fide sale in private. * * * Enough has been said, as it seems to me, to show that the price which an article brings *506 upon a sale is some evidence of its value, and that such sale need not be at auction.”
That case is identical with the present one, and, as I believe, has since been adhered to by the Court of Appeals in Matter of Johnston ( 144 N. Y. 563 ) where'the only evidence of the value of the leasehold estate was the price paid for a fractional portion thereof at private sale.
It has repeatedly been held that the cost price of an article is some evidence tending to show its market value. ( Wells v. Kelsey, 37 N. Y. 143 ; Hawver v. Bell, 141 id. 140 ; Welling v. Ivoroyd Mfg. Co., 15 App. Div. 116 ; Jones v. Morgan, 90 N. Y. 4 ; Hoffman v. Conner, 76 id. 121, 124 .)
If what personal property cost when new is admissible as bearing upon its value upon a subsequent date ( 141 N. Y. 140 , supra;),' a priori what was paid for it at an honest sale by third parties about the time its market value is the subject of inquiry, ought to be some evidence-of that value. The case of Latimer v. Burrows (163 N..Y. Y) contains nothing in conflict with this rule. In that ease the defaulting vendor sought to give evidence of the price for which he sold the property in question at a private sale. The Court of Appeals held this evidence should not have been received because “ it was in effect admitting in his favor proof of the plaintiff’s own act,” to which he was an essential party. There is no dissent from, or criticism of, the case of Pa/rmenter v. Fitzpatrick , but it is referred to approvingly. The rule adopted in Latimer v. Burrows is entirely consistent with the Pa/rmenter case, for the acts'of the party himself were held inadmissible to-prove and pare down the value of the property,- which he acquired by his wrongdoing, because they were done in his own favor. The doctrine which excludes the declarations or statements of the party for his own benefit is equally applicable to his acts; that is all the court decided in'163 New York {supra), as it said at page 9 : “It is clear that a party may. not prove his self-serving declarations in his own behalf. Upon the same principle we think he cannot prove- his self-serving acts in his own favor.”
The marked distinction between that case and the present one is that in the present case the sale which the appellant attempted to prove was made by a disinterested party instead of by the person *507 affected by it. ■ The value of the property was the sole question submitted to the jury. The value given by the appellant’s witnesses was not accepted, so that this excluded testimony was material.
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Rumsey, J., concurred.
Order denying motion for new trial affirmed, with costs.