Opinion
May Term, 1903.
Judgment reversed and new trial granted, costs to abide the final award of costs.
We are of opinion that upon the evidence in this case the award of $4,500 is manifestly excessive. The property alleged to have been injured is on Church lane, near Ocean parkway in the borough of Brooklyn. The plot numbered 1 on the map contained in the appeal book is undoubtedly injured to some extent by the construction of the tunnel maintained by the defendants, that tunnel being directly opposite this portion of the plaintiff's land. No part of the plot numbered 2, however, is opposite the tunnel, that plot being separated from the tunnel by an intervening street; and we think it apparent that the damage to this second piece of property, occasioned by the presence of the tunnel, is nominal at most. The damages are awarded in a lump sum. The decision does not show how much the learned trial judge assessed as the amount of damage done to each of the two lots; hence it is impossible to modify the judgment by deducting the amount awarded for damage to lot No. 2. Under these circumstances it is necessary to reverse the entire judgment and order a new trial. Goodrich, P.J., Woodward, Jenks and Hooker, JJ., concurred.