76 N.Y.S. 82 | N.Y. App. Div. | 1902
The plaintiff is the owner of a piece of land in the village of Newark Valley, N. Y., on which is a building used, among other things, as a store, dwelling and post office. Under the store' and dwelling is a cellar, and over the store is a hall used' as a Masonic lodge room, and over the post office are rooms occupied as a law office. The defendant has since April 1, 1893, been the owner of a piece of land adjoining the plaintiff’s land on two sides. On this laud are buildings and appliances which for many years prior to 1899 were used as a tannery. The plaintiff claims that during all of the 'time that the said tannery property has been owned by the defendant, it has negligently and wrongfully caused and permitted the liquors and waters; used in.cleansing and preparing hides to escape and flow upon the property of the plaintiff and percolate through-the soil thereof and into the cellar of plaintiff’s said building, and that the said plaintiff’s building and premises were contaminated thereby and rendered unwholesome and dangerous to the lives of the persons occupying the same, and that such flow and percolation of liquors and water amounted to a continuous nuisance. This action was brought by the plaintiff to recover damages by reason of such alleged nuisance.
The complainant alleges that such nuisance decreased and destroyed the rental value of his premises, affected and injured the. market value of the merchandise in his store, and rendered portions of it unfit for sale and consumption; that members of his family were rendered -unhealthy and sick; that he was compelled to pay and did pay large sums for medical attendance, and that he was compelled to an.d did remove from his premises at great expense and loss of time. Issue was joined in the action, and on the trial a verdict was rendered in favor of the plaintiff.
We are of the opinion that the evidence before the trial court justified the .submission to the jury of the questions relating to the alleged nuisance and the defendant’s responsibility therefor, but-that errors were committed in regard to determining the amount of the plaintiff’s damage that require us to grant a new trial.
In actions to recover damages for a nuisance, where the same has not been willfully maintained, compensation to the party injured for the wronar of the other should be the basis of the verdict.
The verdict of the jury was $2,925, and it is reasonably certain that they took the conclusion of the plaintiff as' to the usable value of that part of the building occupied by him, together with the item of special damage shown by the plaintiff, to make up the verdict so rendered by them. Defendant’s witnesses testified that the fair rental value of that part of the building occupied by the plaintiff, was from $200 to $250 per year. Plaintiff, on cross-examination, testified that he. could not say that the rental value of the house and store occupied by him was $500 per year.
In Tallman v. M. E. R. R. Co. (121 N. Y. 119) and Woolsey v. N. Y. E. R. R. Co. (134 id. 323) the usable value of real property is recognized as something other than the rental value thereof. The usable value of the property must be determined with reference to the property in the condition that it is in at the time of the injury. So far as usable value includes something other than rental value, it must necessarily refer to the net results to be obtained by the owner from the property in any legitimate use to which it could be put. That the plaintiff in this action intended to include in his estimate of the usable value the profits or net proceeds of his business is reasonably certain from the form of the question, and from the fact that he subsequently stated that the property would not rent for the amount of such estimate. A finding that the rental value of the property was $500 a year would be against the clear weight of evidence. The usable value of property as including the net results of occupying the same or of conducting a business thereon, should not be allowed to be shown- by the conclusion of the person occupying the same or conducting such business. There is no claim in the complaint for loss or diminution of the usable value of the premises, but a claim is made for certain special damages as stated. The questions- asked sought and obtained an answer that evidently summed up all the damages claimed by the plaintiff other than his payments for medical attendance. Assuming' that this is a case where the plaintiff is entitled to show the usable value of that part of the buildings occupied by him, he should have been required by the trial court to have shown such usable value by giving the facts from which such value could have been left for determination by the jury. The
In a case of this kind, to allow the person occupying property to give his conclusions as to the usable value thereof, not only allows him to answer the question to be submitted to the jury, but leaves the defendant almost wholly unable to rebut or contradict such testimony, as the evidence from which the conclusion is drawn is not before the court.
The judgment and order should be reversed, and new trial granted, with costs to the appellant to abide the event.
All concurred.
Judgment and order reversed, and new trial granted, with costs to appellant to abide event.