Nordone v. Mondo , 56 N.Y.S.2d 606 ( 1945 )

Judgment and order modified on the law and .facts in accordance with the memorandum and as modified affirmed, without costs of this appeal to any party. Memorandum: We reach the conclusion that all of plaintiffs’ damages could not have resulted from trespass. Some part, at least, must have been caused by vibration of the substrata of rock as the result of blasting in the sewer ditch. For such damage no recovery can be had except on a finding of negligence. (Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267; Coley v. Cohen, 289 N. Y. 365, 370.) We find the record insufficient to warrant a finding of negligence. However there is ample for the award of damage as the result of trespass. The mere difficulty in apportioning the amount of such damage is no reason to deny plaintiffs a recovery. (Burt Olney Canning Co. V. State, 230 N. Y. 351, 356; Carhart v. State of New York, 115 App. Div. 1, 6.) However we reach the conclusion that the amount awarded must, of necessity, have included damages for which the defendant is not liable. We therefore modify the amount to $750, and as so modified, the judgment is affirmed, without costs of this appeal to either party. All concur, except MeCurn, J., not voting. (The judgment affirms a judgment of the Syracuse Municipal Court in favor of plaintiffs in a negligence action. The order is the order of affirmance.) Present — Taylor, P. J., Dowling, MeCurn, Larkin and Love, JJ.