Opinion
April 17, 1950.
In an action to recover for damages to respondent's property, claimed to have resulted from the unauthorized dumping of waste material thereon by appellant, judgment reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. The rule of damages applicable to this case is the cost of removal of the materials so deposited or the depreciation in value of the property by reason of the wrongful depositing of the same, whichever amount shall be the lesser. ( Hartshorn v. Chaddock, 135 N.Y. 116, 122; Slavin v. State of New York, 152 N.Y. 45, 48; Cooper v. New York L. W. Ry. Co., 122 App. Div. 128, 131; Hamilton Bldg. Co. v. Rapid Tr. Subway Constr. Co., 190 App. Div. 363, 365; Fagan v. Pathe Industries, 274 App. Div. 703.) Appellant should be permitted upon the trial to introduce proof of the value of the property before and after the alleged invasion thereof. Respondent's claim is founded upon a consummated invasion of its property, not upon intermittent and recurring injuries. Its damages, therefore, are not limited by subdivision b of section 394a-1.0 of the Administrative Code of the City of New York to the period of six months prior to the filing of notice of claim under that law. (Cf. Meruk v. City of New York, 223 N.Y. 271, 276, and Thomann v. City of Rochester, 256 N.Y. 165, 170.) Carswell, Sneed, Wenzel and MacCrate, JJ., concur; Nolan, P.J., concurs in the result, being of the opinion that the action involves a continuing trespass upon respondent's land, and that the injury complained of is capable of physical repair. Consequently, in an action at law, a recovery upon the basis of permanent damage is not permissible, and respondent may recover only such temporary damages as have been sustained up to the time of the commencement of the action. Respondent should be permitted, if so advised, to proceed in equity. ( Dietzel v. City of New York, 218 N.Y. 270, 272; Stowers v. Gilbert, 156 N.Y. 600, 604.) [ 196 Misc. 218.]