The opinion
Werner, J.
The defendants’ first contention is that the plaintiff has mistaken its remedy in seeking to recover damages for the unlawful use and occupation of the pier in question, and that it .should have brought an action on the undertaking given by these defendants in the action wherein they were plaintiffs and the city was defendant and in which the injunction above referred to was procured. We think the cases relied upon by the defendants to support that contention have no application here, because this is not a case in which the plaintiff’s right to damages arises out of the granting of an injunction, but is based wholly upon the claim of a. wrongful use and occupation of its property.
The use of the pier for dumping purposes was contrary to the provisions of section 845 of the charter (L. 1897, ch. 378), and defendants’ occupation thereof was, therefore, unlawful.
(Brown
v.
City of New York,
78 App. Div. 361 ; affirmed, 176 N. Y. 571 .) Under these circumstances the plaintiff has the undoubted right' to recover such damages as it may have sustained by reason of such unlawful use and occupation.
In the effort to prove the plaintiff’s damages, its commissioner of docks ivas permitted to testify that the use of the pier for dumping purposes Avas Avorth $12,000 a year and upon this evidence the jury rendered a verdict of $5,000 for such use during the period from May 9 to December 24,. 1902.
In various forms the defendants’ counsel requested the learned trial court to charge the jury that upon the facts alleged and proved the plaintiff was not entitled to recover damages based solely upon the rental Aralne of the pier for dumping purposes, and that the recovery should be limited to-the rental value of the pier for general purposes. These requests were refused and the court charged in substance that
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the plaintiff was entitled to recover for the use of the pier for dumping purposes. The exceptions to the rulings of the learned trial court in that behalf present the only question that we deem it necessary to discuss upon this appeal.
Under familiar principles two distinct and separate measures of damages were open to the plaintiff. It had the right either to base its claim upon the rental value of the pier for general purposes, or to demand the damages growing out of the particular use to which it was subjected by the defendants. Under the first alternative all the uses to which the pier could ordinarily be devoted would have been proper subjects of consideration in determining the measure of damages.
(Reisert
v.
City of New York,
174 N. Y. 196 .) Under the second alternative chosen by the plaintiff, the use of the pier for dumping purposes was the sole and specific ground upon which its claim to damages was based. In order to adapt the pier to this particular use, the defendants necessarily incurred an expense of $6,000, which, in the nature of things, should have been deducted from the gross annual rental value of the pier for dumping purposes in admeasuring the damages to which the plaintiff, under this theory of the case, claimed to be entitled. In other words, the usable válue of the pier for the specific purpose was what it was worth for that purpose after deducting the cost of adapting it thereto. This essential feature of the measure of damages sought to be applied to this case was apparently overlooked by the learned trial court, and for this reason we think the judgment herein should be reversed and a new trial had, with costs to abide the event.
Cullen, Ch. J., O’Brien, Bartlett, Martin and Vann, JJ., concur; Haight, J., absent.
Judgment reversed, etc.