Capel v. Lyons — 3 Misc. 73

Majority

p. 73

Capel v. Lyons.

(New York Common Pleas

General Term,

March, 1893.)

Headnote

An order oí the City Court oí New York denying a motion for a further bill of particulars is discretionary and not reviewable in this court.

Plaintiffs being tenants of premises adjoining property upon which defendants were about to excavate for building, granted unto the latter ■ a license'to enter their premises to a limited extent only for the purpose of shoring up the walls. Defendants exceeded the restrictions contained in the license. Held, that plaintiffs could maintain an action for trespass, and recover damages based upon evidence of loss of profits on work which they were prevented from doing upon the the premises in question by reason of defendants’ acts.

Appeal by defendants from a judgment of the General Term of the City Court, affirming a judgment of the trial term in favor of plaintiffs, entered upon the verdict of the

p. 74

jury. Also appeal from an affirmance of an order denying defendants’ motion for a further bill of particulars.

B. lewinson, for plaintiffs (respondents).

Charles E. Souther, for defendants (appellants).

The order of the City Court denying the defendants’ motion for a further bill of particulars is not reviewable in this court. The circumstances disclosed by the papers called for the exercise of the discrection of the court, for the defendant was plainly guilty of laches in moving and the trial would have been unduly delayed if his motion had been granted. With the exercise of discretion by the City Court in granting or refusing a bill of particulars we cannot interfere. Witkowski v. Paramore, 93 N. Y. 467 ; Kelsey v. Sargent, 100 id. 602 .

On appeal from the judgment the exceptions bring up for review the questions whether the plaintiffs, being tenants of premises adjoining the .property upon which the defendants were about to excavate for building, and having afforded the latter a license to enter the premises to a limited extent only for the purpose of shoring up the wall, can maintain an action for trespass if the restriction in the license be exceeded, and can recover damages based upon evidence of loss of profits on work which they were prevented from doing upon the premises by defendants’ acts.

The verdict of the jury establishes that the defendants were to run their beams into plaintiffs’ basement no further than a foot from the wall, and were to build a partition and replace the steam pipes; that, nevertheless, they put in eighteen or twenty beams which ran nearly all the way across to the opposite wall and deprived plaintiffs of the whole use of the basement. The contention of defendants is thaUilie plaintiffs have an action for breach of contract and not for trespass, and that loss of profits is not recoverable. If the claims were simply for failure to erect a partition and replace the steam pipes the point would be well taken; but the proof showed

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damage accruing from acts in excess of the license, and a trespass by defendants upon the premises beyond the one foot to which the license restricted them. An entry upon any part of plaintiffs’ premises without a license, even for the purpose of supporting their wall, would be a trespass (Ketcham v. Cohn, 2 Misc. Rep. 427 ; Dorrity v. Rapp, 72 N. Y. 311 ), and upon the same principle entry and occupation beyond the limit fixed by the license would equally be a trespass,' for the licensee must bring himself within the terms of the permission to justify under it. Wheelock v. Noonan, 108 N. Y. 179 .

Defendants being trespassers, plaintiffs were not limited to such damages as are recoverable for breach of contract, nor for breach of covenant of quiet enjoyment. There is no analogy between such actions and this case. In trespass, proof of loss of profits is receivable to enable the jury to arrive at the extent of the loss which the defendants’ wrongful act had occasioned. Denison v. Ford, 10 Daly, 414 ; Schile v. Brokhahus, 80 N. Y. 620 . It was competent, therefore, for plaintiffs to show that they had orders to manufacture feathers for specified customers; that the price was certain and so were the profits; that they were prevented by the trespass .from doing the work, and that the goods could not be obtained elsewhere. The exceptions to the admission of this testimony are unavailing. Objection was made to proof of loss of the proportion of the annual rent paid by plaintiffs for the use of the steam heat during the period that their pipes were taken down. It is urged that no such item of damage is embraced in the plaintiffs’ bill of particulars, but this objection was not taken on the trial, either when the evidence was offered, or when the item was submitted in the charge of the court.

Exception was taken to the instruction to the jury that they should find for the plaintiffs the sum which they determined would have been profits, and it is now urged that the court should have charged that the profits, as profits, were not recoverable and were only submitted to enable the jury to arrive at the extent of the plaintiffs’ loss. The defendants did

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not point out the error complained of, hut on the contrary, coupled their exception with a request for an instruction that such .damages were too remote, thus confining their objection to the charge to one ground, and that plainly untenable. No error appears in the record, and the judgment and order appealed from should be affirmed, with costs.

Bischoff and Pbyob, JJ., concur.

Judgment and order affirmed.

Cases cited

Witkowski v. Paramore 93 N. Y. 467 N.Y. 1883-10-09 p. 74
Wheelook v. Noonan 108 N. Y. 179 N.Y. 1888-01-17 p. 75