Tom Sawyer Motor Inns, Inc. v. Chemung County
| Decision Date | 27 April 1972 |
| Citation | 331 N.Y.S.2d 154,39 A.D.2d 4 |
| Parties | TOM SAWYER MOTOR INNS. INC., Respondent-Appellant, v. COUNTY OF CHEMUNG, Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Donovan, Graner, Davidson & Burns, Elmira (M. Bates Davidson, Elmira, of counsel), for plaintiff-respondent-appellant.
James E. Personius, County Attorney, Elmira (Ralph S. Cramer, Elmira, of counsel), for defendant-appellant-respodnent.
Before HERLIHY, P.J., and GREENBLOTT, COOKE SWEENEY and REYNOLDS, JJ.
These are cross-appears from a judgment of the Supreme Court in favor of plaintiff, entered June 25, 1971, and from an amended judgment entered September 20, 1971, in Chemung County, upon a decision of the Court at a Trial Term without a jury (Equity Term).
Upon a prior appeal this matter was remanded to the trial court for a new trial on the issue of the amount of temporary damages which should be awarded for the nuisance then conceded by the defendant to have been created by it to the extent of a temporary nature (33 A.D.2d 720, 722, 305 N.Y.S.2d 408, 412). It appears that the original trial and the hearings upon retrial were conducted before the same Justice and, accordingly, upon the retrial the Justice determined to accept and included the transcript of the prior trial for purposes of reaching his decision. It is hornbook law that a Court of Equity has continuing jurisdiction over a cause before it, so that the rights of the parties may be settled and complete relief given (20 N.Y.Jur., Equity, § 36).
Upon it being established to the trial court's satisfaction that the nuisance had continued to exist for some five years and that it did not affirmatively appear that the defendant was going to successfully correct or abate the nuisance, he concluded that the damages and nuisance were no longer temporary in nature but that the nuisance was permanent and permanent damages should be awarded. The contentions of the defendant upon this appeal that the trial court improperly considered the transcript of the prior trial and improperly made a final determination upon the retrial that the nuisance was permanent are without merit in the context of this particular case.
The questions of whether or not the nuisance was continuning at the time of the retrial and was so unlikely to be abated as to bn permanent in nature were factual issues and the court's determination is not against the weight of the evidence. While it is possible that the after value found by the court might reflect economic factors unconnected with the nuisance, the record demonstrates that the plaintiff suffered substantial damages from the nuisance and it does not appear that the...
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...Hamburg, supra. More recently, a cause of action for inverse condemnation was impliedly recognized in Tom Sawyer Motor Inns, Inc. v. County of Chemung, 39 App.Div.2d 4, 331 N.Y.S.2d 154, Affd., 32 N.Y.2d 775, 344 N.Y.S.2d 958, 298 N.E.2d 120 (1973). That case involved a nuisance action agai......
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...R.R. Co., 134 N.Y. 323, 30 N.E. 1152; Tom Sawyer Motor Inns v. County of Chemung, 33 A.D.2d 720, 305 N.Y.S.2d 408, further appeal 39 A.D.2d 4, 331 N.Y.S.2d 154, affd. 32 N.Y.2d 775, 344 N.Y.S.2d 958, 298 N.E.2d 120; see Prosser, Torts [4th ed], § 90, p. Insofar as injunctive relief is conce......
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...money damages ascertained by determining the before and after market value is entirely fair. (Cf. Tom Sawyer Motor Inns v. County of Chemung, 39 A.D.2d 4, 331 N.Y.S.2d 154, affd., 32 N.Y.2d 775.) In regard to eminent domain the condemnor and the citizen are placed in the respective position......