Fix v. Bellew-Merritt Co.

138 A.D. 579, 123 N.Y.S. 248, 1910 N.Y. App. Div. LEXIS 1585

Opinion

Carr, J.:

The defendant, under permission of the village of Tuckahoe, made an excavation in one of the village streets for the purpose of laying conduits for the use of telephone wires. This excavation proceeded along the street in front of the plaintiff’s property. He complains- that• the defendant piled negligently on his sidewalk such large masses of excavated -material as to injure the sidewalk and to interfere with access to his house. He sued, for $1,000 damages, which he claimed to have arisen as follows: $500 for damages to the sidewalk and. $500 for damages from the temporary impairment of access. He recovered a verdict • for $250, and from the judgment entered- on this verdict the defendant now appeals, It appears that pursuant to action duly taken by the village authorities as provided by law it was the duty of the plaintiff to lay and maintain in good condition a sidewalk in front of his premises.

Footnotes

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* This being so, if the sidewalk was injured through the negligence of the defendant, the plaintiff had a cause of action against the defendant for damage, the measure of which would be the reasonable cost of restoring the sidewalk to its original condition. (Parish v. Baird, 160 N. Y. 302.) The question of negligence was for ■the jury, and upon-the record in this case we cannot say its finding was .against the weight of. evidence. The verdict rendered, however, was for an amount in excess of the proof. The evidence: of the plaintiff as to his actual expenses for repairs shows items aggregating-only $109.25, with an. additional item of $50 as the reasonable cost of repairing a portion of the sidewalk said to have been injured by the defendant but not. actually repaired by the plaintiff, making altogether damages proved at $159.25. The verdict,.therefore, was in excess of the proof. of damages in the amount of $90.75.' If the jury .included this sum as damages for interference with the plaintiff’s right of access, there was no evidence to justify any award of more than .nominal damages on that score, as no actual damage was proved. The judgment and ordér should be reversed and a new trial ordered, costs to abide the event, unless the plaintiff stipulates in writing within twenty days-to reduce the amount of the judgment by deducting therefrom the sum of $90.75, in which event the judgment and order are affirmed, without costs, of this appeal.

Woodward, Jenks, Bube and Rich, JJ., concurred.

Judgment and order of the County Court of Westchester county reversed and new trial ordered, costs to abide the event, unless plaintiff stipulate in writing within twenty days to reduce the amount of the judgment by deducting therefrom the sum of ninety dollars and seventy-five, cents, in which event - the judgment as modified and the order are unanimously affirmed, without costs.

See Village Law (Gen. Laws, chap. 21 [Laws of 1897, chap. 414], § 161,' as amd. by Laws of 1905,. chap. 98; sinqe revised into Consol. Laws, chap. 64 [Laws of 1909, chap. 64], § 161).— [Rep. ' '