39 N.Y.S. 744 | N.Y. App. Div. | 1896
This is an action to recover damages for the diversion of water from a stream and mill pond owned by the plaintiff. The defendant constructed an aqueduct across the stream which supplied the water to the mill pond. It is not claimed that the course of the stream itself was diverted into the aqueduct, but it was contended that, by sinking the foundations for the aqueduct and the construction of a culvert, the water in the stream was drained off by percolation.
On the trial the plaintiff sought, by the testimony of experts, to prove that the building of the aqueduct had caused the diversion of water from the stream. For this purpose he called civil engineers, and a hypothetical question was put to them which assumed the facts testified to as to the drying up of the stream, the method of the construction of the aqudeuct across the stream, and the temporary means or appliances adopted to keep out the water during the construction of the foundations of the aqueduct and culvert. On ' this assumption the witnesses were asked ' what in their judgment was the cause of the drying up and disturbance of this . stream of Water. To this question the defendant objected and the witnesses were allowed to answer, over the defendant’s objection and exception, that the construction of the conduit line had been the . cause of the disturbance of the stream. There is no claim that the witnesses of whom this question was asked were not competent experts, nor is there any claim that the facts assumed in- the hypothetical question were devoid of evidence to sustain them. The contention of the defendant is that the cause of the diversion of the water was not properly the subject of expert judgment, but was to be determined by the jury solely on the facts attending the construction of the aqueduct and the disappearance of the water. This contention cannot be sustained. In Van Wycklen v. City of Brooklyn (supra), an action entirely similar to the one now before us, where it was claimed that the diversion was effected by driven
We are of opinion that the amount of the verdict exceeds the damages proved by the plaintiff. The plaintiff contends that the verdict should not be set aside on this ground “ unless it appears to have been influenced by a prejudice or passion on the part of the jury.” The rule invoked has no application to a case of this character. The action was for injury to property, and there was no element of malice or of wantonness in the defendant’s act justifying the recovery of anything more than the actual damages proved. The plaintiff’s son testified that the gross receipts of the mill had reached $1,400 per year; that $100 a year would equal the expenditure made for help additional to his own and for repairs. He further testified that his own time was worth $3 a day. On this testimony the net profit of the mill would be $400 a year. For a period of three years and a half, the time from the commencement of work on the aqueduct to the bringing of the action, this would amount to $1,400. It would have been probably more
The judgment and order appealed from should be reversed and a, new trial granted, unless plaintiff stipulates to reduce the verdict to the sum of $1,400, in which case the judgment as reduced should be affirmed, without costs.
All concurred, except Bartlett, J., not sitting.
Judgment and order reversed and new trial granted, costs to abide the event, unless plaintiff stipulates within twenty days to reduce the verdict to the sum of $1,400, in which case the: judgment so reduced is unanimously affirmed, without costs.