
    HORN et al., Appellants, v. GLICKMAN, Respondent.
    (Supreme Court, Appellate Division, Second Department.
    October 4, 1907.)
    Appeal from Municipal Court, Action by Joseph Horn and Nellie Horn against Moses N. Glickman. From a judgment for nominal damages only, plaintiffs appeal. Reversed, and new trial ordered. Walter H Thacher, for appellants. Charles Firestone, for respondent.
   GÁYNOR, J.

The defendant in building a house on his lot adjoining the plaintiffs’ house negligently and needlessly excavated under their fence and caused it to fall. A strip of the plaintiffs’ soil three feet wide also fell into the excavation, carrying with it their rose bushes. The defendant also stored lumber on the plaintiffs’ roof, broke a shutter, and his men committed acts of personal nuisance on the plaintiffs’ premises. The defendant gave no evidence at all. The action is for damages for the trespasses. The Justice gave the plaintiffs a judgment for six cents, adding insult to injury. The technicalities of the counsel for the defendant which marked every; step of the trial are deplorable. The plaintiffs called a competent witness (the last witness, a builder) to prove the amount of damage, but his evidence was excluded, the Justice remarking that he must rigidly enforce the rules of evidence. It cannot be said that the case was tried at all. It was simply a case of baiting the plaintiffs and their counsel by captious, frivolous and vexatious technicalities, which should not be tolerated, much less favored, by a court. The judgment should be reversed.  