84 N.Y.S. 437 | N.Y. App. Div. | 1903
The plaintiff, as tenant of the premises No. 48 West Twenty-seventh street, which she conducted as a boarding house, brought this action to recover damages for a nuisance caused by defendant’s plant ■ at the northeasterly corner of Sixth avenue and Twenty-sixth street immediately in the rear of the premises occupied by her. The alleged nuisance consisted of vibrations, noises, smoke and gases. The plaintiff gave evidence tending to show and sufficient to justify a finding that the nuisance existed substantially as alleged. The period for which the plaintiff had a lease of the premises and for which she claims a recovery is from the 28th day of July, 1895, to the 22d day of November, 1898. The defendant contended that the plaintiff having taken her lease subsequent to the creation of the nuisance was not entitled to recover; but the trial court correctly ruled against the defendant on this proposition. (Bly v. Edison Elec. Illum. Co., 172 N. Y. 1.)
The plaintiff did not allege in her complaint, nor did she offer evidence upon the trial tending to show a depreciation in the rental value of her premises as: a whole. She alleges the loss of the use of the rear yard of the premises for laundry purposes; that some tenants left and others were only induced to remain by reducing the rent and that she was unable to rent some of the apartments in consequence of the nuisance* She has recovered the expense to
The cost of having the laundry work done out of the house was objected to as immaterial, not within the issues and as. incompetent and irrelevant. The objections were overruled and the defendant excepted. The inquiry on that branch of the case was the loss sustained by the plaintiff in being deprived of the use of her yard for laundry purposes, the direct consequence of which was that she was obliged to send the laundry out. Had she shown the reasonable cost of having the work done outside there can be no doubt but that would have been competent. The defendant is a wrongdoer, and is answerable to the plaintiff in the damages she has necessarily sustained. Of course she could not contract to have her laundry work done at an excessive price and hold the defendant responsible for the difference between such price and the expense of having the work done on the premises. The specific objection of incompetency was taken below and is urged upon the appeal, and the reception of the evidence without showing that the price paid was reasonable was error.
The fact that the two tenants refused to stay was elicited in the conversations between the plaintiff and them, which were properly received in evidence as part of the res gestae and calculated to explain the nature of ■ the acts, but was not proof of the facts, stated (Hine v. N. Y. El. R. R. Co., 149 N. Y. 154); but it appeared, without objection, that the plaintiff thereafter received only the reduced rental. In view of the rentals paid by these witnesses before the discovery of the nuisance, and of the difficulty of the plaintiff in obtaining and keeping tenants, the jury were justified in finding that the reduced rentals constituted the fair rental value, and that the plaintiff sustained the difference in damages. But for the error in the reception of evidence of the cost of having the laundry work done outside, the judgment and order must be reversed and a new trial granted, with costs to appellant to abide event, unless the plaintiff stipulates to reduce the judgment as entered to
Van Brunt, P, J., Patterson, O’Brien and Hatch, JJ., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as entered to the sum of $776.97, in which event the judgment as so modified and the order appealed from are affirmed, without costs.