Realty Associates, Inc. v. City of New York , 1 A.D.2d 1049 ( 1956 )

In an action to recover damages accruing by reason of unauthorized dumping by respondent of waste material on appellants’ land, the appeal is from a judgment, entered after trial by the court without a jury, dismissing the supplemental complaint on the merits. Judgment reversed on the law, without costs, and new trial granted for the limited purpose of determining and awarding the amount of damages, if any, sustained by appellants by reason of the fill on the westerly portion of the property. It was properly found that respondent was authorized to fill, as it did, the easterly portion of the property. Respondent, however, had no authority to do so with respect to the westerly portion and any finding inconsistent herewith is reversed. The damages, if any, are to be awarded in accordance with the difference between the value of the westerly portion before and after the fill or by the cost of removal thereof and rejjlacement to original condition, whichever is the lesser in amount. Beldook, Acting P. J., Murphy, Ughetta and Hallinan, JJ., concur.