Gaynor v. Quinn

85 N.Y.S. 1131

Opinion

PER CURIAM.

The action is for injury to personal property. The trespass out of which the claim arose is stated in the bill of particulars to have taken place on September 17, 1903. It also appears that the plaintiff, who was the tenant of two of the defendants, was dispossessed by summary proceedings for nonpayment of rent from the premises where the trespass occurred on the 6th day of October, 1903. It is conceded that in September the defendants forcibly entered upon the premises and destroyed some milk belonging to plaintiff, which it was claimed had become so offensive in odor as to constitute a nuisance, and that plaintiff’s prolonged absence from the place necessitated such action on the part of defendants. The justice before whom the case was tried limited the recovery to the injury or damage sustained by reason of the destruction of the milk, and instructed the jury to disregard the items of damage claimed for awnings and other property belonging to plaintiff, and for alterations and repairs that plaintiff had made upon his entering into the tenancy. The testimony shows that whatever claim plaintiff made for damages, outside of the item of milk destroyed, must have arisen from the act of dispossession in October, which was not shown to have been unlawful, and which in any event is not related to the alleged trespass of September 17th. Plaintiff gave proof of a very vague nature as to the quantity of milk destroyed, which he valued at about $Í0. The jury gave a verdict for $5. It cannot be said that the determination of the jury was not warranted by the proof, and the judgment must be affirmed. Judgment affirmed with costs.