123 N.Y.S. 390 | N.Y. App. Div. | 1910
Defendant complains that there is no evidence in this case that the acts of which plaintiff complains were negligently done. It is not necessary that there should be. • Blasting upon one’s own .premises or upon the premises of another, with permission of the owner, if necessary for the improvement thereof, is not an unlawful act. Such blasting necessarily causes vibration of the earth and
The next question in the case to be considered is one of damages. The learned referee has awarded to plaintiff damages for the loss and destruction of the tangible property owned by it, and also daim ages resulting to it by reason of interruption-of its business and loss of profits resulting therefrom. In.the case of a temporary as distinguished from a permanent infringement, of defendant’s rights,, the true measure of damages has been held to be (Joyce Nuis. § 488) the diminution in usable value of the. property. And in certain cases this has been defined to mean the value of -the use of the premises to the occupant, as distinct from the rental of the premises named in the lease thereof by the owner to the tenant. (Hoffman v. Edison El. Illuminating Co., 87 App. Div. 371; Bates v. Holbrook, 89 id. 548; Pritchard v. Edison El. Illuminating Co., 92 id. 178; Bly v. Edison El. Illuminating Co., 111 id. 170; affd., 188 N. Y. 582.) In Bates v. Holbrook (supra) plaintiff had hired certain premises to be used for hotel purposes. Defendant in constructing the subway under Fourth avenue, in the borough of Manhattan, had been guilty of acts which affected said premises"
Upon the whole case we think that no reversible error was committed in the trial of this action by the learned referee, and the judgment appealed from should be affirmed, with costs.
Hirschberg, P. .J., Jenks, Rich and Caer, JJ., concurred.
Judgment affirmed, with costs.