Bokina v. Gatz

¶1In an action, inter alia, to recover damages for the failure to return an original linen survey, the plaintiffs appeal from so much of a judgment of the Supreme Court, Suffolk County, dated May 9, 1978, as, after a nonjury trial, awarded them only $20 in damages. Judgment affirmed insofar as appealed from, with costs. In 1961 and thereafter plaintiffs believe that the adjoining property owners were infringing on their farm land. Seeking to confirm their belief and to terminate this practice, if true, plaintiffs contacted an attorney, defendant Charles W. Gatz, and left with him an original linen survey of their property. Gatz delivered the survey to his codefendant Robert Kart, a surveyor. For reasons not completely established Gatz and Kart were unable to return the original linen survey when plaintiffs requested it, although they did return a copy thereof. Plaintiffs contend that if they had the original linen survey they could prove the infringement by their neighbors. Therefore, they seek damages from Gatz and Kart alleging that the latter’s failure to return the survey has resulted in a substantial loss of land. In our view the evidence presented does not support that contention. The defense presented credible evidence that the copy returned to the plaintiffs was a true copy of the original linen survey and that a new linen survey, identical with the one given to Gatz, could be reproduced at a cost of $20. Lazer, J. P., Gulotta, Cohalan and Gibbons, JJ., concur.