150 N.Y.S. 199 | N.Y. App. Div. | 1914
Lead Opinion
Taking into consideration the two former actions, I think that upon this record the plaintiff was entitled to recover in this action for the usable value of his lands from August 26, 1910, to March 1, 1912, exclusive of the period from March to-November, 1911. As I read the record he recovered in his first action for such value up to August 26, 1910, and in his second action for the said period of months which I would exclude.
The first action was begun on August 17,1911, but the period of recovery therein was limited by the court to the said August 26, 1910, the day of the service of the notice of claim upon the defendant pursuant to section 261 of the Greater New York charter. (See Laws of 1901, chap. 466, § 261, as amd. by Laws
I advise that the judgment be reversed and that a new trial be granted, costs to abide the event.
Rich and Stapleton, JJ., concurred; Burr and Thomas, JJ., each concurred in a separate memorandum.
Concurrence Opinion
I concur in the reversal of the judgment appealed from, but not upon the grounds stated in the prevailing opinion. The usual rule as to the measure of damages in actions for continuing trespass is correctly stated therein, viz., damages to the date of the commencement of the action. I cannot appreciate the force of the argument that the charter provisions requiring the filing of a notice of plaintiff’s demand furnish an exception to the rule. Plaintiff’s demand, and the claim upon which it rests, is for the trespass. The amount of the claim is only incidental thereto. In his notice, filed with the comptroller, upon the commencement of action No. 1, he should have stated the claim upon which his demand was based, and,
Concurrence Opinion
I concur with Burr, J. The plaintiff’s market garden was injured by defendant’s continuing trespass from and including the year 1910, to March 1, 1912, when his lease expired. He has scattered this period into four fragments, as follows: (1) 1910 to August 26, 1910; (2) August 26, 1910, to March or April, 1911; (3) March or April 1, 1911, to November 1, 1911; (4) November 1, 1911, to March 1, 1912. He recovered for the first period in action No. 1, begun August 17, 1911; for the third period in action No. 2, begun February 15, 1912; and would recover for the second and fourth periods in this action, No. 3, begun March 5, 1913. He could have recovered in action No. 1, begun August 17, 1911, all his damages to that time including period No. 2, or he could have recovered therefor in action No. 2, begun February 15, 1912, and all his damages to that time. But he did not recover damages for the second period either in the first or second actions, but carried them over to action No. 3, begun March 5, 1913, and tacked them onto the damages from November 1, 1911, to March 1, 1912. The first question is whether he should be allowed to recover damages for the second period, August 26, 1910, to March 1, 1911, assuming that he has any. This court is now deciding that he could not recover them in the first action, begun August 17, 1911, for a time later than the date of filing his notice of claim with the comptroller on August 26, 1910. Why then did he not seek recovery for the second period in the second action begun February 15, 1912 ? His answer is that what he now says is the law he did not know to be the law when he began suit No. 2. But ignorance of the law is not an excuse. He is now securing a decision that he could not
The judgment should be reversed and a new trial granted, costs to abide the event.
Judgment reversed and new trial granted, costs to abide the event.