
    Frank Comesky, Appellant, v. Postal Telegraph-Cable Company, Respondent.
    
      Verdict in an equity action to enjoin the maintenance of telegraph poles—fee damages are not recoverable in an action at law — the opinion of a witness as evidence.
    
    In an action in equity to enjoin the maintenance of telegraph poles upon the plaintiff’s land, and to recover the damages resulting therefrom, the verdict of a jury as to the amount of such damages is not conclusive upon the court.
    In an-action at law to recover the damages resulting from the erection of the poles, it is error to allow the plaintiff to prove, by the opinion of a witness, the depreciation in the value of his property occasioned by the erection and maintenance of the poles.
    The fact itself is not competent, as fee damages for the permanent continuance of a nuisance or trespass can only be recovered in an equity action.
    Appeal by the plaintiff, Frank Comesky, from an order of the Supreme Court, made at the Rockland Trial Term, and entered in the office of the clerk of the county of Rockland on the 18th day of December, 1897, setting aside the verdict of a jury rendered in. favor of the plaintiff for $250.
    
      Arthur S. Tompkins, for the appellant.
    
      William W. Cook, for the respondent.
   Cullen, J.:

This action was brought by the plaintiff, as owner of land abutting upon the highway, for the recovery of damages caused by the erection of two telegraph poles in the highway in front of his premises ; and also to enjoin the further maintenance of the poles. The action was brought on for trial before a jury at the Trial Term, and a verdict rendered for the plaintiff in the sum of $250. A motion for a new trial having been made, the court set aside the verdict as-excessive; and from that order this appeal is taken.

We think, in any view of the case, the order of the court should be upheld. As the plaintiff prayed for an injunction, the action may be considered as in equity to en join a continuing trespass or nuisance. If it was an equity action, then the verdict of the jury was not conclusive on the decision of the court. The court may adopt the-verdict and find accordingly, or may disregard it and make its own findings, and when the case comes up on appeal it is to be reviewed on the findings and decisions of the court as if there had been no-submission of any fact to the jury.” (Carroll v. Deimel, 95 N. Y. 252, 255; Birdsall v. Patterson, 51 id. 43; Colie v. Tifft, 47 id. 119.) But if we take the other view of the action, and hold that,, having been brought on for trial before a jury, the plaintiff waived his claim for equitable relief, and the action is to be considered one at law for damages, there was an error committed at the trial which was fatal to the stability of the verdict rendered. The plaintiff,, against the objection and exception of the defendant, was allowed to prove, by the opinion of a witness, the depreciation in the value of his property occasioned by the erection and maintenance of the poles. Opinion evidence was incompetent to prove this fact. (Roberts v. N. Y. E. R. R. Co., 123 N. Y. 455.) Biit the fact itself was not competent. In an action at law, either for a trespass or a nuisance, the plaintiff may recover only his damages up to the time of bringing the action. It is only in an equity action that he can recover for damages caused to the fee of his property by the permanent maintenance of the nuisance or continuance of the trespass. (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98.) These views render it unnecessary to examine the other questions argued by the parties on this appeal.

The order appealed from should be affirmed, with costs.

All concurred.

Order granting new trial affirmed, with costs.  