Opinion
February 3, 1969
Judgment of the Supreme Court, Putnam County, dated April 22, 1968, modified, on the law, by deleting so much of the fifth decretal paragraph as awards $750 in damages to plaintiffs. As so modified, judgment affirmed, without costs. The findings of fact are affirmed. In our opinion, under the terms of the judgment of May 7, 1965, as modified by this court ( Berney v. Brodie, 26 A.D.2d 679), the awarding of damages for the destruction of trees and shrubs was not within the purview of the trial court upon the remission of the action. Christ, Acting P.J., Brennan, Hopkins and Martuscello, JJ., concur; Benjamin, J., dissents and votes to reverse the judgment and grant a new trial, with the following memorandum: I still believe that plaintiffs are not entitled to the relief granted them by this court and the trial court, and I wish to restate what I said in my dissenting memorandum on the prior appeal ( Berney v. Brodie, 26 A.D.2d 679, 680). I need only add that my reference, in that prior dissent, to an "accurate survey" showing the house mainly on plaintiffs' land, may have been itself inaccurate, since subsequent surveys made at defendants' request seem to indicate that the boundary line is actually so located that defendants' house is entirely on their own land. And if that is so, plaintiffs obviously would be entitled to no relief at all. In any event, whether the house be partly on plaintiffs' land or entirely on defendants' land, the relief granted to plaintiffs by this judgment seems to me to result in a miscarriage of justice, which is not mandated by this record.