Moss v. Newmark

Per Curiam. This action was to recover damages caused by an excavation made so near to the property of the plaintiffs as to undermine it. The ease was tried before the judge and a jury. Appellant seeks to have reviewed a number of rulings in the trial of the case. But two of these, however, are properly before us, no exception having been taken to the rulings complained of. It is only when the case is tried by the judge without a jury that parties are relieved of the duty of making timely objection and taking suitable exception to the rulings of the court. Smith v. Kruse, 128 Atl. Rep. 379. It is first claimed that the court erred in refusing an adjournment asked for by the defendant’s attorney on the ground that a witness who had not been- subpoenaed was absent. This was a matter resting in the discretion of the trial judge. The other exception taken was to a portion of the charge that the jury might estimate the costs of reporting the damage to the plaintiffs’ property. This instruction was not erroneous. While the real measure of damages was the depreciation if any in the market value of the property, it was proper for the jury to consider as bearing on that question the costs of restoring the property to its former condition. The judgment is affirmed.