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Batchelor v. Hinkle

133 N.Y.S. 501 Court N.Y. App. Div. Decision date 1912-02-02 English

Decision Majority — PER CURIAM. · Dissent — LAUGHLIN, J.

Contents
p. 501
BATCHELOR v. HINKLE et al.
(Supreme Court, Appellate Division, First Department.
February 2, 1912.)

Headnote

Appeal from Trial Term, New York County.
Action by Rosanna Batchelor against Eugene E. Hinkle and another. From a judgment for plaintiff, defendants appeal.
Affirmed.
Argued before INGRAHAM, P. J., and EAUGHEIN, CLARKE, McLaughlin, and scott, jj.
C. A. Collin, for appellants.
P. Merrill, for respondent.

Judgment affirmed, with costs, on prevailing opinions on former appeals. 132 App. Div. 620 , 117 N. Y. Supp. 542 ; 140 App. Div. 621 , 125 N. Y. Supp. 929 .

(dissenting). I am of opinion, for the reasons assigned in my memorandum concurring in the reversal of a former judgment herein in favor of the defendant (Batchelor v. Hinkel, 140 App. Div. 621 , at 625, 125 N. Y. Supp. 929 ), that plaintiff was not entitled to a mandatory injunction for the removal of the encroachment; but the evidence now before the court is less favorable to the plaintiff on the question of damages than that contained in the former record. The evidence in this record tends to show only nominal damages, and therefore I think that this complaint, which is for equitable relief, should have been dismissed without a finding as to the precise amount of damages, so that the plaintiff might, if she so desired, have her damages assessed by a jury; but that question is not presented for review, and therefore I vote merely for a reversal.