Rockland Light & Power Co. v. City of New York , 33 N.Y.S.2d 258 ( 1942 )

Hill, P. J.

The plaintiff is the owner of 4,382 acres of land “ together with certain flowage rights and easements which are available for proposed hydro-electric developments ” and other lands, upon which a hydro-electric development is located. These lands extend for more than eleven miles on the west and more than eleven and a half miles on the east side of the Never sink river which in tins distance has a fall of approximately four hundred feet. Plaintiff may not develop the project in accordance with its plans because of a decree of the United States Supreme Court concerning the release of water by the city of New York from this projected reservoir, and because of the lands acquired by the city and the rights granted to it by the Legislature of the State. All these acts in connection with the city’s Delaware water project have destroyed the value of the undeveloped portion of plaintiff’s lands for their most available use and have lessened the value-of plaintiff’s one hydro-electric development. It may be that this work will never be finished; indeed, many public works projects will unquestionably be held in abeyance for the duration of the war, and it may be years before the work is completed, if at all. Should the city delay cutting off the water from the Neversink river for many years, plaintiff, under the decision below, would be denied the right to prosecute its claim for the ever-growing damages arising from a lack of a return on tbe investment, payment of taxes and other items. Section K41-44.0 of the Administrative Code of the City of New York is sufficient authority for recovery in connection with this claim. Section K41-18.0 provides for the filing of claims. Thereunder plaintiff’s failure to file its claim within three years after the appointment of commissioners of appraisal constitutes a surrender of such claim and may be set up as a defense by the city. It would be the duty of the officials of the city to plead the Statute of Limitations and it has been done. (Matter of Beekman v. City of New York, 254 App. Div. 619.) Plaintiff is entitled to damages from the time when its damages accrue and commissioners have already been appointed; thus the three-year Statute of Limitations is now running.

I am not impressed by the theory that this will be unfair to the city. When and if the city actually diverts the water, plaintiff’s full damages will have accrued, and if recovered fractionally, the whole is but the sum of the several parts, and damages presently recoverable on account of reduced value will be deductible from the total damage suffered by plaintiff. If, as suggested, the city will quite directly complete the reservoir and effect a diversion of the water, then doubtless the trial of the claim now filed would be combined with the trial of the claim for remaining damages following actual diversion.

The doctrine of German Masonic Temple Assn. v. City of New York (279 N. Y. 452), stated in the dissent, is adopted.

The orders and judgment dismissing the complaint should be reversed on the law.

Crapser and Bliss, JJ., concur; Foster, J., dissents, in an opinion, in which Schenck, J., concurs.