Niewenhous v. Manhattan Ry. — 98 N.Y.S. 501

Majority

p. 501

(112 App. Div. 895)

NIEWENHOUS v. MANHATTAN RY. et al.

(Supreme Court, Appellate Division, First Department.

March 9, 1906.)

Headnote

Trial — Involuntary Nonsuit — Power to Dismiss.

In an action for injury to property by interference with the easements of access, light, and air, a dismissal of the complaint was erroneous, where the plaintiff's proof showed that he was entitled to some fee damage, though he failed to establish that he had suffered any diminution in rental value.

[Ed. Note. — For cases in point, see vol. 46, Cent. Dig. Trial, § SCO.]

Appeal from Special Term, New York County.

Action by Sisbrand Niewenhous against the Manhattan . Railway

p. 502

and another to recover for injury to property by interference with the easements of access, light, and air. From a judgment dismissing plaintiff’s complaint on the merits, plaintiff appeals.

Reversed.

Argued before O’BRIEN, P. J., and PATTERSON, McLAUGHLIN, LAUGHLIN, and HOUGHTON, JJ.

Vincent P. Donihee, for appellant.

J. Osgood Nichols, for respondents.

The plaintiff’s proof failed to establish that he had suffered any diminution in rental value, but we think it did show that he was entitled to some fee damage. A dismissal of his complaint was, therefore, error.

The judgment must be reversed, and á new trial granted, with costs to the appellant to abide the event.