Batchelor v. Hinkle

Present —Ingraham, P. J., McLaughlin, Laughlin, Clarke and Scott, JJ.; Laughlin, J., dissented.

I am of opinion, for the reasons assigned in my memorandum concurring in the reversal of a former judgment herein in favor of the defendant (Batchelor v. Hinkle, 140 App. Div. 621, 625), that plaintiff was not entitled to a mandatory injunction for the removal of the encroachment; but the evidence now before the court is less favorable to the plaintiff on the question of damages than that contained in the former record. The evidence in this record tends to show only nominal damages, and, therefore, I think that this complaint, which is for equitable relief, should have been dismissed without a finding as to the precise amount of damages, so that the plaintiff might, if she so deshed, have her damages assessed by a jury; but that question is not presented for review, and, therefore, I vote merely for a reversal.