Nordone v. Mondo

Appellate Division of the Supreme Court of New York

Nordone v. Mondo

269 A.D. 896, 56 N.Y.S.2d 606, 1945 N.Y. App. Div. LEXIS 4366

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

DecidedJune 27, 1945

StatusPublished

Cited by2 cases

This text of 269 A.D. 896 (Nordone v. Mondo) 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.

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Nordone v. Mondo, 269 A.D. 896, 56 N.Y.S.2d 606, 1945 N.Y. App. Div. LEXIS 4366 (N.Y. Ct. App. 1945).

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Opinion

Judgment and order modified on the law and .facts in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: We reach the conclusion that all of plaintiffs’ damages could not have resulted from trespass. Some part, at least, must have been caused by vibration of the substrata of rock as the result of blasting in the sewer ditch. For such damage no recovery can be had except on a finding of negligence. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267; Coley v. Cohen, 289 N. Y. 365, 370.) We find the record insufficient to warrant a finding of negligence. However there is ample for the award of damage as the result of trespass. The mere difficulty in apportioning the amount of such damage is no reason to deny plaintiffs a recovery. (Burt Olney Canning Co. V. State, 230 N. Y. 351, 356; Carhart v. State of New York, 115 App. Div. 1, 6.) However we reach [897]*897the conclusion that the amount awarded must, of necessity, have included damages for which the defendant is not liable. We therefore modify the amount to $750, and as so modified, the judgment is affirmed, without costs of this appeal to either party. All concur, except MeCurn, J., not voting. (The judgment affirms a judgment of the Syracuse Municipal Court in favor of plaintiffs in a negligence action. The order is the order of affirmance.) Present — Taylor, P. J., Dowling, MeCurn, Larkin and Love, JJ.

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Judgment and order modified on the law and .facts in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: We reach the conclusion that all of plaintiffs’ damages could not have resulted from trespass. Some part, at least, must have been caused by vibration of the substrata of rock as the result of blasting in the sewer ditch. For such damage no recovery can be had except on a finding of negligence. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267; Coley v. Cohen, 289 N. Y. 365, 370.) We find the record insufficient to warrant a finding of negligence. However there is ample for the award of damage as the result of trespass. The mere difficulty in apportioning the amount of such damage is no reason to deny plaintiffs a recovery. (Burt Olney Canning Co. V. State, 230 N. Y. 351, 356; Carhart v. State of New York, 115 App. Div. 1, 6.) However we reach [897]*897the conclusion that the amount awarded must, of necessity, have included damages for which the defendant is not liable. We therefore modify the amount to $750, and as so modified, the judgment is affirmed, without costs of this appeal to either party. All concur, except MeCurn, J., not voting. (The judgment affirms a judgment of the Syracuse Municipal Court in favor of plaintiffs in a negligence action. The order is the order of affirmance.) Present — Taylor, P. J., Dowling, MeCurn, Larkin and Love, JJ.

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269 A.D. 896, 56 N.Y.S.2d 606, 1945 N.Y. App. Div. LEXIS 4366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nordone-v-mondo-nyappdiv-1945.

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