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Smith v. Commercial Const. Co.

130 N.Y.S. 403 Court N.Y. App. Div. Decision date 1911-06-29 English

Delivered by HIRSCHBERG, J.

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p. 403
SMITH v. COMMERCIAL CONST. CO.
(Supreme Court, Appellate Division, Second Department.
June 29, 1911.)

Headnote

Municipal Corporations (§ 663[1] )—Cutting Trees on Street and on Abutting Property—Liability.
Where defendant, in moving a building on a street, cut down trees on an abutting owner’s side of the street and on his property, the abutting owner may sue for treble damages, under Code Civ. Proc. §§ 1667, 1668, authorizing treble damages for cutting down trees on the land of another.
[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1440; Dec. Dig. •§ 663.[1] ]
p. 404
Appeal from Trial Term, Kings County.
Action by Charles D. Smith against the Commercial Construction Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.
Affirmed.
Argued before JENKS, P. J., and HIRSCHBERG, WOODWARD, . BURR, and RICH, JJ.
Charles S. Taber, for appellant.
Eugene N. L. Young, for respondent.

The plaintiff is the owner in fee of two acres of land_ on Second street in Brentwood, Suffolk county. The land_ is bounded 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 Railway Co., 5 Misc. Rep. 59 , 25 N. Y. Supp. 114 , and the opinion of Mr. Justice Rumsey, rendered therein on a motion for a new trial, was adopted by the General Term ( 77 Hun, 609 , 28 N. Y. Supp. 1135 ), and by the Court of Appeals ( 151 N. Y. 623 , 45 N. E. 1133 ). See, also, Van Siclen v. Jamaica Electric Light Co., 45 App. Div. 1 , 61 N. Y. Supp. 210 , affirmed by the Court of Appeals ( 168 N. Y. 650 , 61 N. E. 1135 ) on the opinion of Mr. Justice Hatch in this court, and Donahue v. Keystone Gas Co., 181 N. Y. 313 , 73 N. E. 1108 , 70 L. R. A. 761 , 106 Am. St. Rep. 549 .

The judgment and order should be affirmed.

Judgment and order unanimously affirmed, with costs.

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