Smith v. Commercial Construction Co.

Appellate Division of the Supreme Court of New York

Smith v. Commercial Construction Co.

145 A.D. 603, 130 N.Y.S. 403, 1911 N.Y. App. Div. LEXIS 4798

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

DecidedJune 29, 1911

StatusPublished

This text of 145 A.D. 603 (Smith v. Commercial Construction Co.) 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

Smith v. Commercial Construction Co., 145 A.D. 603, 130 N.Y.S. 403, 1911 N.Y. App. Div. LEXIS 4798 (N.Y. Ct. App. 1911).

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Opinion

Hirschberg, J.:

The plaintiff is the owfler in fee of two acres of land on Second street, in Brentwood, Suffolk county. The land is hounded by the center of the highway and is occupied by the plaintiff as a residence. It is heavily wooded and at the time of the acts complained of there was a heavy growth of white and natural pine upon the street and within the line of the plaintiff’s ownership.. In the month of July, 1907, while the plaintiff was absent from his home, the defendant was engaged in moving a school building upon the street to land owned by it opposite the plaintiff’s property, and in moving the building cut down a large number of trees on the plaintiff’s side of the street and On the plaintiff’s property.. In the action, brought under sections 1667 and. 1668 of the Code of Civil Procedure the plaintiff has recovered a verdict for $500 damages, which amount was trebled by the court.

On the . question of the location and boundaries of the plaintiff’s property, the nature and extent of the spoliation and the extent of the damages incurred, there was conflicting evidence and many alleged errors in ruling by the trial court are presented in the appellant’s brief. All the questions and points raised have been carefully examined- and no ground appears for a reversal. In the. circumstances, the right of action is undoubted and has often been upheld. A somewhat similar case was early presented in McCruden v. Rochester R. Co. (5 Misc. Rep. 59), and the opinion of Mr. Justice Eumsey, rendered therein on a motion for a new trial, was adopted by the General Term (77 Hun, 609) and by the Court of Appeals (151 N. Y. 623). (See, also, Van Siclen v. Jamaica Electric Light Co., 45 App. Div. 1; affd. by the Court of Appeals, 168 N. Y. 650, on the opinion of Mr. Justice Hatch in this court, and Donahue v. Keystone Gas Co., 181 N. Y. 313.)

The judgment and order should be' affirmed.

Present — Jenks, P. J., Hirschberg, Burr, Woodward and Eich, JJ.

Judgment and order unanimously affirmed, with costs.

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Hirschberg, J.:

The plaintiff is the owfler in fee of two acres of land on Second street, in Brentwood, Suffolk county. The land is hounded by the center of the highway and is occupied by the plaintiff as a residence. It is heavily wooded and at the time of the acts complained of there was a heavy growth of white and natural pine upon the street and within the line of the plaintiff’s ownership.. In the month of July, 1907, while the plaintiff was absent from his home, the defendant was engaged in moving a school building upon the street to land owned by it opposite the plaintiff’s property, and in moving the building cut down a large number of trees on the plaintiff’s side of the street and On the plaintiff’s property.. In the action, brought under sections 1667 and. 1668 of the Code of Civil Procedure the plaintiff has recovered a verdict for $500 damages, which amount was trebled by the court.

On the . question of the location and boundaries of the plaintiff’s property, the nature and extent of the spoliation and the extent of the damages incurred, there was conflicting evidence and many alleged errors in ruling by the trial court are presented in the appellant’s brief. All the questions and points raised have been carefully examined- and no ground appears for a reversal. In the. circumstances, the right of action is undoubted and has often been upheld. A somewhat similar case was early presented in McCruden v. Rochester R. Co. (5 Misc. Rep. 59), and the opinion of Mr. Justice Eumsey, rendered therein on a motion for a new trial, was adopted by the General Term (77 Hun, 609) and by the Court of Appeals (151 N. Y. 623). (See, also, Van Siclen v. Jamaica Electric Light Co., 45 App. Div. 1; affd. by the Court of Appeals, 168 N. Y. 650, on the opinion of Mr. Justice Hatch in this court, and Donahue v. Keystone Gas Co., 181 N. Y. 313.)

The judgment and order should be' affirmed.

Present — Jenks, P. J., Hirschberg, Burr, Woodward and Eich, JJ.

Judgment and order unanimously affirmed, with costs.

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145 A.D. 603, 130 N.Y.S. 403, 1911 N.Y. App. Div. LEXIS 4798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-commercial-construction-co-nyappdiv-1911.

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