Batchelor v. Hinkle

Judgment affirmed, with costs, on prevailing opinions on former appeals. 132 App. Div. 620, 117 N. Y. Supp. 542; 140 App. Div. 621, 125 N. Y. Supp. 929.

(dissenting). 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. Hinkel, 140 App. Div. 621, at 625, 125 N. Y. Supp. 929), 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 desired, have her damages assessed by a jury; but that question is not presented for review, and therefore I vote merely for a reversal.