Opinion
May Term, 1903.
Judgment of the Municipal Court affirmed, with costs.
The defendant was the owner of a house and lot in the borough of The Bronx until the 15th day of November, 1900. On that date the title of the property was vested in the city of New York by virtue of statutory proceedings duly taken to open and widen a public highway known as the White Plains road, and thereafter the building became and remained an incumbrance upon the street, the removal of which was, by the terms of section 383 of the amended charter (Laws of 1901, chap. 466), within the cognizance and control of the president of the borough. The defendant and his family continued to occupy the property after the title had been acquired by the city, and on the 2d day of April, 1902, the building was sold under the direction of the president of the borough at public auction to the plaintiff. The defendant thereafter refused to vacate the building or to deliver up possession, or to permit the plaintiff to remove it until August 19, 1902, although a proper demand was made on April third, the day after the purchase, and notwithstanding he had full knowledge of the plaintiff's rights in the premises. The defendant makes no claim of right, but bases his appeal altogether upon technical objections to the plaintiff's title and to the legal proceedings taken for the enforcement of the latter's rights. We do not find any of them sufficient to justify a reversal. The case seems a proper one for the application of the ordinary rule of damages by which an injured party is made whole. The court was justified in finding that the plaintiff could have rented the building in its then condition when removed, and has awarded to the plaintiff such rental for the period during which he was deprived of the same by the defendant's wrongful act, together with special damage by way of additional expense in the removal occasioned by such act. Under the peculiar circumstances of the case, and in view of the theory upon which it was tried on both sides, the measure of damages applied may be upheld as just and equitable and no point is made in reference to it which requires our interference with the result. The judgment should be affirmed. Goodrich, P.J., Bartlett, Woodward and Jenks, JJ., concurred.