Miller v. State of New York

Appellate Division of the Supreme Court of New York

Miller v. State of New York

279 A.D. 1139

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 16, 1952

DocketClaim No. 29417-A

StatusPublished

Cited by2 cases

This text of 279 A.D. 1139 (Miller v. State of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miller v. State of New York, 279 A.D. 1139 (N.Y. Ct. App. 1952).

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Opinion

Memorandum: The claimant’s proof was that the cracks in the concrete block building were first noticed when the piling was being driven and before any excavation, if there was excavation, was commenced. This did not constitute proof on which to predicate a finding on which the claim for removal of lateral support could be made. Further, there was no competent proof that the burden of the weight of the building did not contribute to the loss of lateral support. In any event, there was no proof of excavation, which proof would be necessary before the State could be held liable on the theory of removal of lateral support. (Radcliff’s Executors v. Mayor of Brooklyn, 4 N. Y. 195; Riley v. Continuous Rail Joint Co., 110 App. Div. 787, aifd. 193 N. Y. 643; Bergen v. Morton Amusement Co., 178 App. Div. 400.) The claim for land value as shown in claimants’ claim was the sum of $1,000. We think the Court of Claims was limited to the amount asked for. We approve the award of $1,600 for replacement of the wooden buildings as found by the trial court. All concur. (Cross appeals from a judgment for claimants on a claim for damages for appropriation of realty.) Present — Taylor, P. J., Vaughan, Kimball, Piper and Wheeler, JJ. [199 Mise. 237.] [See 280 App. Div. 882.]

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Memorandum: The claimant’s proof was that the cracks in the concrete block building were first noticed when the piling was being driven and before any excavation, if there was excavation, was commenced. This did not constitute proof on which to predicate a finding on which the claim for removal of lateral support could be made. Further, there was no competent proof that the burden of the weight of the building did not contribute to the loss of lateral support. In any event, there was no proof of excavation, which proof would be necessary before the State could be held liable on the theory of removal of lateral support. (Radcliff’s Executors v. Mayor of Brooklyn, 4 N. Y. 195; Riley v. Continuous Rail Joint Co., 110 App. Div. 787, aifd. 193 N. Y. 643; Bergen v. Morton Amusement Co., 178 App. Div. 400.) The claim for land value as shown in claimants’ claim was the sum of $1,000. We think the Court of Claims was limited to the amount asked for. We approve the award of $1,600 for replacement of the wooden buildings as found by the trial court. All concur. (Cross appeals from a judgment for claimants on a claim for damages for appropriation of realty.) Present — Taylor, P. J., Vaughan, Kimball, Piper and Wheeler, JJ. [199 Mise. 237.] [See 280 App. Div. 882.]

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279 A.D. 1139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miller-v-state-of-new-york-nyappdiv-1952.

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