Castle Brothers, Respondent, v. The City of New York, Appellant

Castle Brothers, Respondent, v. The City of New York, Appellant. Second Department, October 18, 1912. Trespass — construction of flushing tunnel — destruction of bulkhead — consent. Action to recover damages for a trespass alleged to have been committed by the defendant upon plaintiff’s property while engaged in constructing a flushing tunnel to improve the sanitary condition of a canal. Held, that a judgment awarding damages, measured by the cost of replacing a portion of a bulkhead or pier destroyed through the acts of the defendant, should be affirmed; That the consent of the plaintiff to the reconstruction of a part of a bulkhead did not license the defendant to destroy the remaining bulkhead without compensation. Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of December, 1911, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived. James D. Bell [J. W. Johnson, Jr., and Archibald B. Watson- with him on the brief], for the appellant. George W. Titcomb, for the respondent. [MAJORITY — Woodward, J.:] Woodward, J.: The plaintiff, a domestic corporation, brings this action to recover damages for a trespass alleged to have been committed by the defendant upon the plaintiff’s property at the southwest comer of Douglas street and Gowanus canal while engaged in the construction of a flushing tunnel intended to improve the sanitary condition of Gowanus canal. Upon the trial of the action by the court, a jury having been waived, the court found the fact of the defendant’s trespass and awarded the amount of damages proved to have been sustained, this damage being measured by the cost of replacing a portion of a bulkhead or pier destroyed through the acts of the defendant in the progress of its work. The defendant appeals from the judgment. It is urged on the part of the defendant that the plaintiff consented to the reconstruction of a part of this bulkhead, and that, having consented, it is not in a position to complain because another portion of the pier was destroyed, in the operation. It is true that the plaintiffs, who are contractors, consented to the entry upon their premises for the purposes of this public improvement, but it is not true that they consented to the destruction of their property without compensation. The plans for the improvement made it necessary for the defendant to enter upon the premises and to construct a bulkhead along a portion of the plaintiff’s water front, and the mere fact that the plaintiff consented to this work did not give the defendant a license to destroy the remaining bulkhead. It did not authorize the imposing of a special burden upon the plaintiff for a public purpose, and the operations of the defendant having resulted in a taking of the plaintiff’s property in its bulkhead it is but just and reasonable that it should be compensated for the damages shown. We have examined the exceptions suggested by the defendant without finding reversible error. The judgment should be affirmed, with costs. Jenks, P. J., Burr, Thomas and Rich, JJ., concurred. Judgment affirmed, with costs.