Lundy v. City of New York

226 A.D. 753

Opinion

Judgment dismissing the complaint reversed upon the law and the facts, and a new trial granted, costs to abide the event. The proof established that at the commencement of the action plaintiff had a cause of action in equity for a continuing trespass, and although the trial court properly decided that injunctive relief should be denied it should have retained jurisdiction to adapt the relief to the exigencies of the case by awarding such damages as may have been legally established. (Hubbell v. Henrickson, 175 N. Y. 175, 180; Sadlier v. City of New York, 185 id. 408; Olsen v. U. S. Fidelity & Guaranty Co., 230 id. 31; Whaley v. City of New York, 83 App. Div. 6; Martin v. Baumann, 182 id. 896.) The present state of the proof did not warrant an award for future damages by reason of the effect of section 164-a of the Sanitary Code

* and the state of the proof with respect to rental value. There was, however, evidence, the probative value of which should be assayed, upon which might be predicated an appropriate award with respect to past damages because the sanitary provisions in force in 1923 did not prevent such clams as were in uncertified waters from being removed therefrom and transplanted in certified waters and thus made available for lawful sale. Lazansky, P. J., Rich, Carswell and Seudder, JJ., concur; Kapper, J., dissents.

See Code of Ordinances of City of New York, chap. 20, § 164-a.— [Rep.