Cozzens v. Higgins

33 How. Pr. 436, 3 Keyes 206

• Court: New York Court of Appeals
• Decided: September 15, 1866
• Status: Published

Opinion

Poster, J.

The appellant assumed to justify the acts complained of, on the ground that they were necessary to protect the property of the plaintiff from, injuries to which he was about to expose it, by undermining the walls of both ; that the means he used were appropriate and adequate, and that they were resorted to with the assent of the respondent. The evidence objected to was admissible, as it tended to show the extent of the actual injury, and the insufficiency of the appliances to which the defendant had recourse, for the purpose of averting it. It was for the jury to determine, in view of all the evidence, and under appropriate instructions from the court, how far the damages resulting to the plaintiff were ref enrabie to the defendant’s wrong. The photographic view of the cellar was an appropriate aid to the jury in applying the evidence, as it was taken in the month of November, and showed the condition, of the premises at that time. None of the evidence objected to was irrelvant to the issue, and in no instance was any ground of objection stated, to justify its exclusion by the judge.

The cause was well tried, and the judgment should be affirmed.

Judgment affirmed.