
    Charles Klingenberg, Respondent, v. The City of New York, Appellant.
    Second Department,
    November 20, 1914.
    Real property — separate actions against the city of New York for continuing trespass upon real property — effect of service of notice of claim, pursuant to section 361 of the Greater New York charter.
    Where a lessee of property has recovered for a continuing trespass in an action begun on August 17, 1911, but the period of recovery was limited by the court to August 26, 1910, the day of the service of the notice of-claim upon the defendant, pursuant to section 261 of the Greater New York charter, and has recovered in a second action the usable value of his lands from March to November, 1911, he may in a third action recover the usable value of his lands from August 26, 1910, to March 1, 1912, exclusive of the period covered by the second action.
    Burr and Thomas, JJ., dissented in part, with memoranda.
    Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 3d day of April, 1914, upon the decision of the court after a trial at the Queens County Trial Term, a jury having been waived.
    
      William E. C. Mayer [Terence Farley and Frank L. Polk with him on the brief], for the appellant.
    
      Charles Coleman Miller, for the respondent.
   Jenks, P. J.:

Taking into consideration the two former actions, I think that upon this record the plaintiff was entitled to recover in this action for the usable value of his lands from August 26, 1910, to March 1, 1912, exclusive of the period from March to-November, 1911. As I read the record he recovered in his first action for such value up to August 26, 1910, and in his second action for the said period of months which I would exclude.

The first action was begun on August 17,1911, but the period of recovery therein was limited by the court to the said August 26, 1910, the day of the service of the notice of claim upon the defendant pursuant to section 261 of the Greater New York charter. (See Laws of 1901, chap. 466, § 261, as amd. by Laws of 1907, chap. 677; since amd. hy Laws of 1912, chap. 452.) The learned corporation counsel insists that there can he no recovery in this action for any period prior to the time of the commencement of the first action, because the plaintiff could have recovered in the first action the damages up to that time under the rule announced in Uline v. N. Y. C. & H. R. R. R. Co. (101 N. Y. 98) and Pond v. Metropolitan E. R. Co. (112 id. 186). But I think that the said charter provision is in limitation of the general rule. This provision is to afford the city opportunity for investigation and adjustment without litigation. And incidentally it is in further assurance of the prompt payment of a just claim. If the period of recovery upon such a claim were not limited by the time of filing thereof, but only by the time of the commencement of the action, then necessarily for thirty days and for any other period that intervened the filing of the claim and the beginning of the action there could not be notice to the city, and, consequently, no opportunity for the investigation and adjustment contemplated by the statute. In fine, no claim is filed that covers at least the period of thirty days, and possibly a much longer period.

I advise that the judgment be reversed and that a new trial be granted, costs to abide the event.

Rich and Stapleton, JJ., concurred; Burr and Thomas, JJ., each concurred in a separate memorandum.

Burr, J. (concurring):

I concur in the reversal of the judgment appealed from, but not upon the grounds stated in the prevailing opinion. The usual rule as to the measure of damages in actions for continuing trespass is correctly stated therein, viz., damages to the date of the commencement of the action. I cannot appreciate the force of the argument that the charter provisions requiring the filing of a notice of plaintiff’s demand furnish an exception to the rule. Plaintiff’s demand, and the claim upon which it rests, is for the trespass. The amount of the claim is only incidental thereto. In his notice, filed with the comptroller, upon the commencement of action No. 1, he should have stated the claim upon which his demand was based, and, if necessary to specify damages, should have specified an amount sufficient to compensate him to the date of the commencement of the action. If he did not do so it was his fault. I think that the court, in action No. 1, erred in not allowing plaintiff to prove damages to the date of the trial. But for this error plaintiff’s remedy was by appeal and not by a new suit. I concur also with Thomas, J., in respect to the amount of damages if defendant is liable.

Thomas, J. (concurring):

I concur with Burr, J. The plaintiff’s market garden was injured by defendant’s continuing trespass from and including the year 1910, to March 1, 1912, when his lease expired. He has scattered this period into four fragments, as follows: (1) 1910 to August 26, 1910; (2) August 26, 1910, to March or April, 1911; (3) March or April 1, 1911, to November 1, 1911; (4) November 1, 1911, to March 1, 1912. He recovered for the first period in action No. 1, begun August 17, 1911; for the third period in action No. 2, begun February 15, 1912; and would recover for the second and fourth periods in this action, No. 3, begun March 5, 1913. He could have recovered in action No. 1, begun August 17, 1911, all his damages to that time including period No. 2, or he could have recovered therefor in action No. 2, begun February 15, 1912, and all his damages to that time. But he did not recover damages for the second period either in the first or second actions, but carried them over to action No. 3, begun March 5, 1913, and tacked them onto the damages from November 1, 1911, to March 1, 1912. The first question is whether he should be allowed to recover damages for the second period, August 26, 1910, to March 1, 1911, assuming that he has any. This court is now deciding that he could not recover them in the first action, begun August 17, 1911, for a time later than the date of filing his notice of claim with the comptroller on August 26, 1910. Why then did he not seek recovery for the second period in the second action begun February 15, 1912 ? His answer is that what he now says is the law he did not know to be the law when he began suit No. 2. But ignorance of the law is not an excuse. He is now securing a decision that he could not recover below the date of filing his claim. Why, then, did he not include the second period in his second claim and second action ? His own interpretation of the law convicts him of failing to recover for the omitted time when he had full opportunity of doing so, and of splitting up a cause of action for a continuing trespass so that an intermediate portion of it should be segregated and then carried over to be included in a subsequent suit. Such a fugitive and volatile fraction of a right of action escaping the second notice filed, and the second action, and coalescing with the third cause of action, in my judgment' introduces a strange and abnormal feature in the doctrine of splitting up causes of action. I think that a person suffering from a continuing trespass cannot, after the damage is recoverable, present some of it to the comptroller piecemeal and dis-jointly, and sue upon it in patches. But what damages, in fact, has he left ? He recovered to August 26, 1910, which would seem to include the loss of his season. He must have recovered for what he planted before August twenty-sixth. Could he plant and reap after August twenty-sixth, and so into the progressing months ? That would seem to -require some sustaining evidence. In any case it may be believed that in this latitude vegetation is not profitable from November first to March first.

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

Judgment reversed and new trial granted, costs to abide the event.  