Lester v. Mayor of New York , 86 N.Y. Sup. Ct. 479 ( 1894 )

FOLLETT, J.

It is not alleged in tbe complaint, nor was it proved on the trial, that the site selected for the work was an improper one; that the work was negligently performed; or that any of the structures or machinery were unnecessary. In short, there is no allegation or evidence that the aqueduct commissioners,, or any of the defendant’s agents, or the contractors or their servants, were negligent. Nor is there any allegation or evidence that trespasses were committed on the plaintiff’s premises. Before this-action was begun, the work complained of had been completed,, the structures removed, and the lot owned by the city had been sold, but to what uses it has since been put does not appear. The-undisputed evidence shows that the structures- and work complained. . of were temporary, and necessary for the construction of the aqueduct authorized by chapter 490, Laws 1883. Temporary annoyances are almost invariably caused to the owners of lots adjoining one on which new buildings are being erected or extensive improvements made; and in case no trespass is committed, and the work is prosecuted with care and diligence, the owners of adjoining lots, suffering temporary inconveniences, have no legal cause for complaint for consequential injuries caused by the prosecution of the work necessary to erect the buildings or to complete the improvements. Such temporary use of property is legitimate, and affords no ground for damages to an abutting owner who sustains consequential damages by temporary annoyances, not negligently caused and not amounting to trespasses. Any other rule would render the improvement of property in cities unduly expensive and well-nigh impossible. This case does not fall within the principle declared in Morton v. City of New York, 65 Hun, 32, 19 N. Y. Supp. 603, affirmed 140 N. Y. 207, 35 N. E. 490, but within the class of cases of which Radcliff v. Mayor, 4 N. Y. 195, Bellinger v. Railroad Co., 23 N. Y. 42, and Atwater v. Trustees, 124 N. Y. 602, 27 N. E. 385, are types. See, also, 2 Dill. Mun. Corp. (4th Ed.) 967 et seq. In Morton’s Case a permanent structure was erected, which was held to be a nuisance, causing permanent injuries to the plaintiff’s property. The rule “damnum absque injuria” is applicable to this case. Broom, Leg. Max. 184; Shear. & R. Neg. (4th Ed.) 283, 299, and cases cited. Again, in an action arising under the aqueduct act, it was held that the aqueduct commissioners were not the agents of the city, and that it had no control over the manner of doing the work. O’Brien v. Mayor (Cir. Ct.) 15 N. Y. Supp. 523, affirmed 65 Hun, 112, 19 N. Y. Supp. 793, and 139 N. Y. 543, 35 N. E. 323. The judgment should be affirmed, with costs. All concur.