178 A.D. 495 | N.Y. App. Div. | 1917
This action is brought to recover from the defendant, which was engaged in the erection of a section of the subway on Broadway, damages claimed to have been sustained by reason of the erection, maintenance and operation by defendant on the street and sidewalk in front of plaintiff’s demised premises of certain structures used in the work of excavation and construction, and from which said work was prosecuted for a considerable distance north and south of the said premises thereby interfering with plaintiff’s easement of light, air and access, and imposing an undue and excessive burden upon his premises as against other premises along the section of the subway served by such structure. The answer is a general
There is but little dispute as to the facts. Plaintiff was the lessee of the store, basement and sub-basement of the premises No. 593 Broadway and No. 186 Mercer street thirty feet in width by two hundred feet in depth. Of these premises he had been the occupant since February 1, 1907, and at the time in question he was in possession under a lease for five years from February 1, 1911, at a yearly rental of $7,500, conducting therein a wholesale business as a dealer in hosiery and knit goods. Of the Broadway front the northerly five feet were used for an entrance to the upper part of the building, and of the remaining twenty-five feet, about fifteen feet were occupied by a show window, beginning about two feet from the level of the sidewalk and extending to the ceiling of the store, which was about eighteen feet in height. The entrance to plaintiff’s store was at the southerly end of the building. Adjoining it and at right angles to the main show window was another window extending to the same height; the entrance door was of glass above a three-foot wooden panel. Broadway is eighty feet wide at this point. Before the operations in question, the light entering plaintiff’s premises was sufficient to enable business to be done therein during the spring and summer months until four o’clock in the afternoon, without artificial light, to a distance of about one hundred and twenty-five feet from Broadway. Defendant was the contractor with the Public Service Commission for the construction of a section of the Lexington Avenue Rapid Transit railroad on Broadway, from a point near Howard street to about the middle of the block between Prince and Bleecker streets, a total length of two thousand six hundred and eleven feet. The method of construction adopted for the work was the most approved one, known as the “ cut and covered ” method, by which the annoyance to abutting property owners was minimized and the obstructions to street
remained practically unchanged from • March, 1912, until December, 1913, at which time the defendant’s work under its contract was completed; but instead of removing the
The first point raised by the appellant which requires consideration is that error was committed in allowing a recovery herein which embraces damages for the period during which the Dock Contractor Company was in possession of the structure in question. This action was commenced May 18, 1913. Plaintiff has recovered the damages caused to him by the maintenance and operation of the structure complained of during the entire time of its continuance and until its removal, which included the occupancy by the Dock Contractor Company. The action being one at law, anything happening after its commencement could not be used as the basis of damages. (Pond v. Metropolitan Elevated R. Co., 112 N. Y. 186; Ottenot v. New York, L. & W. R. Co., 119 id. 603; Tallman v. Metropolitan Elevated R. R. Co., 121 id. 119; Amerman v. Deane, 132 id. 361.) But parties have a right to try their controversies in their own way in the absence of objection, and it is quite obvious that the plaintiff and defendant were equally willing that the issue of defendant’s liability, if any, should not alone be determined, but that they were both agreed that if defendant was liable the entire amount of plaintiff’s damage should be determined in this action and that he should recover therein not only the damage which he sustained down to the time of the commencement of his suit, but also his entire damage down to the removal of the structure by the Dock Contractor Company. An examination of the record satisfies us that this is
The remaining question in the case is whether upon the facts proven there was any liability whatever upon the part of the defendant for the construction and operation of the shaft and structures in question, or whether it is a case where private rights must yield to temporary inconvenience and loss arising from acts done in the public interest performed under legislative authority; in which case, in the absence of negligence, the persons performing the work under such authority in good faith are not liable for consequential damages. In other words it is claimed to be a case of damnum absque injuria. The respondent relies largely upon the cases of Bates v. Holbrook (171 N. Y. 460) and Matter of Rapid Transit Railroad Commissioners (197 id. 81). It is quite true that in the former case the court said (p. 469): “ Damages which are inflicted upon abutting property owners in the performance of public work, reasonably and properly conducted, are regarded as damnum absque injuria. This exemption rests upon the necessity of the situation and commends itself to all reasonable minds. The necessary injuries and annoyances inflicted upon this plaintiff, in the proper prosecution of this work, arise from the opening of the street in Fourth avenue, on the east side of his property, and the construction of the subway, by blasting, and other necessary work, involving obstruction, noise and general inconvenience. When this portion of the work is accomplished and the street restored to its normal condition opposite his property, the annoying situation would cease as to him. If, however, the structures, of which complaint is made, are to be maintained during the-entire prosecution of the work on defendant’s section, the
Clarke, P. J., Lattghlin, Smith and Davis, JJ., concurred
Judgment affirmed, with costs.