Joseph Horn and Nellie Horn, Appellants, v. Moses N. Glickman, Respondent

Joseph Horn and Nellie Horn, Appellants, v. Moses N. Glickman, Respondent. Second Department, October 4, 1907. Damage—trespass — frivolous objection. Competent evidence of damages to- land by a trespasser should not be: excluded upon objections which are merely captious, frivolous, vexatious and technical. Appeal By tlie plaintiffs, Joseph Horn and another, from a judg- ' ment of the Municipal Court of tlie city of New York in favor of said plaintiffs for six cents damages, entered after a trial before the court without a jury. - " Walter H. Thacher, for the. appellants. Charles Firestone, for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: -The defendant in. building a house on his-lot adjoining the plaintiffs’ house negligently and needlessly excavated under, their, fence ahd caused' it to fall. A strip of the plaintiffs’ soil three feet wide' also fell into the excavation, carrying with it their rose' bushes. The defendant -also- stored lumber on the plaintiffs’ roof, broke a .shutter, and his men' committed, acts of personal nuisance on the plaintiffs’- premises. . The defendant gave no evidence at all. The action is for damages for the trespasses: The justice gave'tlie plaintiffs a judgment for six cents, adding.insult to injury.' The technicalities of tlie counsel for the defendant which marked every step of the trial are deplorable! The. plaintiffs called a competent witness (the last witness, a builder) fd prove, the amount of damage, but his evidence was excluded, the justice remarking that he niust rigidly enforce the rules of evidence. ' It cannot be said that the case was tried at all. ; It was simply a case of baiting the plaintiffs and their counsel by captious, frivolous and vexatious technicalities, which should not be tolerated, much'less favored by a court. The judgment should be reversed. Jenks, Hooker and Miller, JJ., concurred; Rich, J., concurred in result. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.