
    Forest G. Weeks, Appellant, v. The State of New York, Respondent.
    
      New Torts State — wrongful withholding by, of water from mills—what damages are recoverable by the owner — when the rented value is not considered.
    
    Where the State of New York wrongfully withholds the water from paper mills located upon the outlet to Skaneateles lake, the mill owner is entitled .to recover his loss of profits, if they can he ascertained with reasonable certainty, and also the amount necessarily paid by him to his employees during the time when the mill was idle because of the withholding of the water.
    If the loss of profits is made the basis of the recovery the rental value of the mill property should not be taken into consideration.
    
      Appeal by the claimant, Forest G-. Weeks, from a judgment, of the Court of Claims in favor of the defendant, entered in the office of the clerk of that court on or about the 20th day of March, 1899, except the part thereof adjudging that the plaintiff recover of the State of Mew York his costs on an appeal to the Appellate Division from a previous award therein.
    The grounds of the appeal, as stated in the notice of appeal, are “that the judgment for damages rendered in said claim is insufficient, and contrary to law and the evidence, and that incompetent, irrelevant and immaterial evidence was received and considered by said court on the trial of said claim on the subject of damages.”
    This claim is for damages alleged to have been sustained by the claimant, the owner of two paper mills located on the outlet of Skaneateles lake, in consequence of the State of Mew York having wrongfully withheld the water from such outlet- '
    
      Edwin Nottingham, for the appellant.
    
      John G. Davies, Attorney-General, and George H. Stevens, Deputy Attorney-General, for the respondent.
   Herrick, J.:

We have heretofore held in the case of Lakeside Paper Company v. State (60 N. Y. Supp. 1081; 45 App. Div. 112), a case similar to this, that the claimant can recover for the loss of qirofits when they are ascertainable to a reasonable certainty; it is not to be expected that the exact amount of profits lost can be ascertained in any case.

In the case before us there is no dispute as to the profits made upon a ton of paper, and I think the claimant proved with reasonable certainty the number of tons of paper he was prevented from making by reason of the withholding of water from his mills. In addition to evidence as to such loss of profits, evidence was also given as to the rental value of the mills; also items of alleged loss by reason of the payment of workmen, whom he was compelled to keep in and about his mills, and for whom there was nothing to do ; also evidence was given as to the decreased profits upon the paper manufactured by him when the water was only qiartially withheld.

It does not appear upon what basis the Court of Claims computed the amount it found due the plaintiff in this case, but upon any computation that I have been able to make as to the amount of profits lost, it seems to me that the loss of profits was not the basis of the judgment rendered; and as they can be reasonably ascertained, that should be the basis, and if it is made such, then the rental value is not to be taken into consideration.

The plaintiff is also entitled to recover the amount which it appears was necessarily paid employees while the mill was necessarily idle because of the acts of the defendant.

In the Lakeside Paper Company case we also held that the claimant was entitled to interest from the date of the filing of the claim to be added to the award; that has not been done in this case.

For these reasons the judgment of the Court of Claims should be reversed, a rehearing granted, with costs to abide the event.

All concurred.

Judgment reversed and a rehearing granted, with costs of this appeal to abide the event.  