Bomptin Realty Co. v. City of New York

Appellate Division of the Supreme Court of New York

Bomptin Realty Co. v. City of New York

276 A.D.2d 1094

Appellate Division of the Supreme Court of the State of New York·Decided April 17, 1950·Published

Opinion

Carswell, Sneed, Wenzel and MacCrate, JJ., concur; Nolan, P. J., concurs in the result, being of the opinion that the action involves a continuing trespass upon respondent’s [1095] land, and that the injury complained of is capable of physical repair. Consequently, in an action at law, a recovery upon the basis of permanent damage is not permissible, and respondent may recover only such temporary damages as have been sustained up to the time of the commencement of the action. Respondent should be permitted, if so advised, to proceed in equity. (Dietzel v. City of New York, 218 N. Y. 270, 272; Stowers v. Gilbert, 156 N. Y. 600, 604.) [196 Misc. 218.]

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Carswell, Sneed, Wenzel and MacCrate, JJ., concur; Nolan, P. J., concurs in the result, being of the opinion that the action involves a continuing trespass upon respondent’s [1095] land, and that the injury complained of is capable of physical repair. Consequently, in an action at law, a recovery upon the basis of permanent damage is not permissible, and respondent may recover only such temporary damages as have been sustained up to the time of the commencement of the action. Respondent should be permitted, if so advised, to proceed in equity. (Dietzel v. City of New York, 218 N. Y. 270, 272; Stowers v. Gilbert, 156 N. Y. 600, 604.) [196 Misc. 218.]

Bomptin Realty Co. v. City of New York, 276 A.D.2d 1094 (N.Y. Ct. App. 1950).

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Opinion

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