
    Caroline Barrick, Resp’t, v. Anna Schifferdecker, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 7, 1890.)
    
    1. Nuisance—Injury to building—Measure op damages.
    Where the melting of ice in defendant’s ice house struck through the walls of plaintiff’s adjacent dwelling, injuring it and making it so unsafe and unfit for occupation as to seriously diminish its rental value,_ and plaintiff asks for an injunction to prevent the continuance of the nuisance and for damages, it is improper for the court to allow the plaintiff to prove the loss of rental value to the trial and the cost of repairing the injury and the permament depreciation, and on the jury fixing the damages to refuse to grant an injunction but allow the judgment for damages to stand.
    2. Same.
    The cost of prevention and the result of continuance cannot both be given. The award of the one must necessarily exclude the other.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiffs, entered by direction of the court, and upon its own findings and upon a general verdict in favor of the plaintiffs for damages.
    
      Andrew Hamilton, for app’lt; D. Cady Herrick, for resp’t.
    
      
       Reversing 16 N. Y. State Rep., 449.
    
   Finch, J.

The principal question raised on this appeal relates to the measure of damages. The parties were adjoining owners, and the defendant, using her building for the storage of ice, caused injury to the plaintiff’s dwelling-house. The melting of the ice occasioned a dampness, which struck through the walls of the dwelling, and beyond an injury to the structure, made it so unsafe and unfit for occupation as to have seriously diminished its rental value. The plaintiff brought an equitable action so far as the relief demanded was concerned. She asked for an injunction to prevent the continuance of the nuisance and for damages. Under the defendant’s objection and exception she was allowed to prove the loss of rental value to the time of the trial, and then the cost of repairing the injury done and putting the dwelling into a condition to be unaffected by the proximity of the ice, and in addition to that, the permanent depreciation. FTo instructions were given to the jury limiting or guiding their action upon this evidence, but they were left to determine the damages from the proof given, and in their own way. They rendered a verdict for the plaintiff of $1,000. The court refused to grant an injunction and gave no equitable relief, but allowed the judgment for damages to stand. That judgment must be reversed for the error in admitting evidence relating to the damages. Although the complaint demanded equitable relief, no case for it was made, and none awarded. The injury complained of was by no means permanent in its character, and resulted from the use of the defendant’s building as an ice house and the melting of the ice therein. She might elect to discontinue that use, and if equitable relief had been granted would have had the option to have discontinued the nuisance and so to have prevented a permanent depreciation of value, or, continuing it, to obtain the right so to do by paying the resulting depreciation, as the court might determine. But on this trial the depreciation was proved without an award of equitable relief, and double damages may have been the consequence of the proof.

The rental value to the time of the tnal and in addition the sum necessary to repair plaintiff’s house and put it in a condition which would prevent future injury from the same cause were first shown, and their aggregate would cover the total damages possible to be sustained. When to that permanent depreciation is added, damages are given for what cannot occur. The cost of prevention and the result of continuance cannot both be given. The award of the one must necessarily exclude the other. We cannot know how the jury arrived at their verdict, and it may have been influenced by the erroneous admission of evidence, and so there must be a new trial upon which, according as the court shall find the facts, either the legal or equitable rule of damages must prevail, but not both.

The judgment should be reversed and a new trial granted, costs so abide the event

All concur.  