
    Lakeside Paper Company, Appellant v. The State of New York, Respondent.
    
      Tortious withholding of water by the State from, a mill — measure of damages—■ interest on the award.
    
    Where the State of New York wrongfully^ withholds the water furnishing the motive power of a*mill which is fully equipped with workmen and appliances and is in profitable operation, the mill owner is entitled to recover the loss of profits resulting therefrom; if the proof of^uch profits is not satisfactory, the mill owner may prove the value of the use of the water, that is, its value to him'as the mill was then equipped and operated,.and not the mere rental value of the real estate to a lessee who would hire his own workmen.
    Where the damage was caused in 1892 and payment of the mill owner’s claim has been delayed by the unsuccessful litigation of the State, interest on the award from the date of filing: the claim may properly be allowed.
    Appeal by. the claimant, the Lakeside Paper Company, from so much of a judgment of the Court of Claims in favor of the defendant, entered in the office of said Court of Claims on the 20th day of March, 1899, as awards it $1,692, for damages done to its paper mill by the act of the State in shutting off for seventy-eight days in 1892 the water by which the mill was operated. The appellant claims that tlie award is insufficient.
    
      For former appeal see 15 Appellate Division 169. For particulars of the situation see Waller v. State (144 N. Y. 579).
    
      Edwin Nottingham, for the appellant.
    
      John C. Davies, Attorney-General, for the respondent.
   Landon, J.:

The plaintiff’s paper mill was fully equipped with workmen and appliances and was in profitable operation when the State wrongfully withheld the water operating it for a. period of seventy-eight •days. The claimant proved, I think,, to a reasonable certainty that Lie act of the State reduced its production of paper by 302 tons; that its profit thereon would have been $8 per ton, and consequently its loss upon that item was $2,416. The claimant proved to a reasonable certainty that the wages of its workmen which it- was obliged to pay when they could render no useful service were $715. The award was $1,692, but upon what basis- it was computed the record does not show. The amount awarded, however, shows that the claimant’s demand for Iosif of profits was in great part rejected.

We think the claimant "was entitled to recover for loss of profits. 'The State was a wrongdoer, and, therefore, full compensation for the direct and directly consequential damages was the claimant’s right. These include profits lost when they are ascertainable. (Schile v. Brokhahus, 80 N. Y. 614; Snow v. Pulitzer, 142 id. 263; Lacour v. Mayor, 3 Duer, 406.) They are given in case of breach •of contract when they are satisfactorily proved, are the direct result of the breach, and when.they may be presumed to have been within the contemplation of the parties to the contract. ■- (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205.) But cases are ■frequent where they cannot be satisfactorily proved, or where they were the remote and not the immediate result of the breach, or where they were not within the contemplation of the parties to the •contract. In any one of these three categories, lost profits are not recoverable. Some other measure of damages must be resorted to. (Witherbee v. Meyer, 155 N. Y. 446.)

Whatever uncertainty may have existed before these cases, we think it is now settled law that in a case sounding in tort like this, if the plaintiff can prove that lost profits were the direct result of the wrong, and can show to a reasonable • certainty what' they amounted to, he is entitled to recover them. If the claimant’s proof did not appear to be reasonably satisfactory as to the amount of the loss of profits, then the value of the use of the water to the claimant, situated as it was, could have been resorted to. (Pollitt v. Long, 58 Barb. 20.) This would mean, what was the value of the use of the water to its mill, fully equipped with workmen, whose wages must be paid, and which was operating at a profit of eight dollars per ton upon its production of about five and one half tons, per day, not the mere rental value of the real estate to a lessee wliO' would hire his own workmen. The evidence of the claimant was that it .was worth from thirty-six dollars to forty dollars per day the'State gave no evidence directly bearing upon the question.

Instead of 429 tons, the usual product of the mill in 78 days, the claimant made but 127 tons and this at an increased expenditure for coal. If the 127 tons represent 25 days’ production at 5-^ tons per day, there remain 55 days of loss, at at least $36 per day, equal te $1,980.

The damages were caused in 1892, and the claimant’s demand has been delayed by the unsuccessful litigation of the State. (Lakeside Paper Co. v. State, 15 App. Div. 169.) We think interest from the date of filing the claim might properly be added to the award,, otherwise full compensation may not be. awarded. (Wilson v. City of Troy, 135 N. Y. 96.)

The judgment so far as appealed from is reversed and a new-hearing granted, costs to abide the event.

All. concurred, except Putnam, J., dissenting.

Award reversed and a new trial granted, costs to abide the events  