Hoffman v. Dyruff

Action for injunctive relief and for money damages for removal of lateral support of plaintiff’s land. Final judgment modified by striking out the second, third and fourth ordering paragraphs and by inserting in place thereof the following provisions: (1) That the complaint as to defendant Dyruff be dismissed on 838 the law, without costs. (2) That the judgment of plaintiffs against defendants Kishner and Bernheim Contracting Co., Inc., be reversed on the law and facts and a new trial granted, with costs to appellants Kishner and Bernheim Contracting Co., Inc., to abide the event, unless within ten days from the entry of the order hereon plaintiffs stipulate to reduce the award in their favor to $1,700, in which event the judgment in favor of plaintiffs, as thus reduced, is unanimously affirmed, without costs. (3) That the judgment in favor of defendant Dyruff against appellants Kishner and Bernheim Contracting Co., Inc., be reversed on the law and facts and a new trial granted, with costs to said appellants to abide the event, unless within ten days from the entry of the order hereon defendant Dyruff stipulate to reduce the award in her favor to $1,000, in which event the judgment as to her, as thus reduced, is unanimously affirmed, without costs. In all other respects the final judgment is unanimously affirmed, without costs. There was no proof that defendant Dyruff participated in or knew of the damage that was being done by the other defendants who were excavating under a license issued by defendant Dyruff. The present damages in favor of plaintiffs against defendants Kishner and Bernheim Contracting Co., Inc., are excessive (Riley v. Continuous Rail Joint Co., 110 App, Div. 787; affd., 193 N. Y. 643), as are also those in favor of defendant Dyruff against said defendants. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. The appeals from the interlocutory judgment are dismissed in view of the determination of the appeals from the final judgment. Lazansky, P. J., Hagarty, Carswell, Johnston and Close, JJ,, concur. Settle order on notice, [See 260 App. Div, 808.]