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Art. 3. Special Damages.

Code, § 1904, provides for interest in action for causing death by negligence.

ARTICLE III.

SPECIAL DAMAGES.

Where any special damages have naturally, and in sequence, resulted from the tort, they may be recovered. Underhill on Torts,

78.

All damages which ordinarily and in the natural course of things might fairly be expected to result, and have resulted, from the commission of the wrongful act, are recoverable, provided they are claimed by the plaintiff in his declaration. Addison on Torts,

1186.

Under a general allegation of damages, the plaintiff may prove and recover those damages which naturally and necessarily result from the act complained of; for these damages the law implies will proceed from it. These are called general, as contradistinguished from special, damages, which are the natural, but not the necessary, consequence. 1 Sutherland on Damages, 763.

"In cases of torts, it is necessary to show that the particular damage in respect of which the plaintiff proceeds must be the legal and natural consequence of the wrongful acts imputed to the defendant. (1 Chit. Pl. 388; 8 East, 3.) It is another rule that the special damage must be particularized, in order that the defendant may be able to meet the charge, if it be false; if it be not so stated, it cannot be given in evidence. And if the action be not sustainable, independent of the special damage, the declaration is bad on demurrer. (1 Chit. Pl. 389; 1 Saund. 243, note, 5, 8 T. R. 132.)" Butler v. Kent, 19 Johns. 223 (228).

"Where the damages actually sustained do not necessarily arise from the act complained of, and consequently are not implied by law, in order to prevent surprise to the defendant, the plaintiff must state in his declaration the particular damage which he has sustained, or he will not be permitted to give evidence of it upon the trial. This is the rule laid down by Mr. Chitty, Chitty Pl. 385-388; and he there refers to a great variety of cases to illustrate and support it. 8 T. R. 133; Peake's N. P. C. 46, 62; 9 Coke, 113-a; 1 Saund. 346-a, b, note 2; 2 East, 154; 1 Saund. 243, note 5; Viner's Abr. Ev. tit. b. 6. See also 9 Wend. 325. The doctrine is unquestionable." Squier v. Gould, 14 Wend. 160.

This case and Armstrong v. Percy, 5 Wend. 538, are cited with

Art. 3. Special Damages.

approval in Stevens v. Rodger, 25 Hun, 54, where it was held that the rule laid down in those cases is a salutary one, and that it applies with full force to pleadings under the Code.

In actions for torts, damages are either general or special. The former are such as the law implies to have accrued from the wrong complained of. The latter are such as really took place, and are not implied by law, and are superadded to general damages arising from an act injurious in itself, as when some particular loss arises from the uttering of slanderous words actionable in themselves; or are such as arise from an act indifferent and not actionable in itself, but injurious only in its consequences, as when words become actionable only by reason of special damage ensuing. The former description need not be stated in the declaration, for the reason that presumptions of law are not in general to be pleaded. But the latter, when the law does not necessarily imply that the plaintiff sustained damage by the act complained of, is essential to the validity of the declaration to show particularly. And when the damages sustained do not necessarily arise from the act complained of, and consequently are not implied by law, the plaintiff must in general state the particular damage which he has sustained, or he will not be permitted to give evidence of it. (1 Chit. Pl. 385; Butler v. Kent, 19 Johns. 228); Dumont v. Smith, 4 Den. 319 (322).

Special damages, although the natural result of an injury, if they are not the necessary result, ought to be pleaded. Cibulski v. Hutton, 47 App. Div. 108, 62 N. Y. Supp. 166, citing Hergert V. Union Ry. Co., 25 App. Div. 218, 49 N. Y. Supp. 307.

The plaintiff is entitled to recover, as a recompense for his injury, all the damages which are the natural and proximate consequence of the act complained of. (2 Greenl. Ev., § 256.) Those which necessarily result from the injury are termed general damages, and may be shown under the general allegation of damages at the end of the declaration. But such damages as are the natural, although not the necessary, result of the injury are termed special damages, and must be stated in the declaration to prevent a surprise upon the defendant; and, being so stated, may be recovered. Vanderslice v. Newton, 4 N. Y. 130 (132).

Where the damages necessarily result and naturally flow from the injury complained of, they may be recovered without any special averment. Jutte v. Hughes, 67 N. Y. 267.

Art. 4. Consequential Damages.

Where the damages are such as necessarily and naturally result from the injury complained of, it is not necessary that they should be specially averred in order to authorize a recovery. Argotsinger v. Vines, 82 N. Y. 308 (314).

Under an allegation in a complaint that, by reason of the failure of defendant to keep drains on his premises in repair, water overflowed on plaintiff's premises, interfering with their use, it was held that the plaintiff might show he had lost rents by consequence of the flow of the waters into his cellars, and that it was not necessary to plead loss of rents as special damages; that they were such as necessarily and naturally resulted from the injury complained of, and a special averment was not necessary in order to authorize a recovery. Jutte v. Hughes, 67 N. Y. 267. When a plaintiff alleges that his person has been injured and proves the allegation, the law implies damages, and he may recover such as necessarily and immediately flow from the injury (which are called general damages), under a general allegation that damages were sustained; but if he seeks to recover damages for consequences which do not necessarily and immediately flow from the injury (which are called special damages), he must allege the special damages which he seeks to recover. Gumb v. Twenty-third St. Ry. Co., 114 N. Y. 411 (414).

ARTICLE IV.

CONSEQUENTIAL DAMAGES.

It is not an answer to a claim to recover damages for a tort that the injury suffered was the result of a series of acts, some of which were lawful and innocent; nor is the plaintiff precluded from proving these lawful acts, which are essential links in the chain constituting the wrong complained of. Rich v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 382.

When an injury is not direct, but consequential, such as is caused by concussion from a blast which by shaking the earth injures the property, there is no liability in the absence of negligence. Sullivan v. Dounham, 161 N. Y. 290 (296), citing Benner v. Atlantic Dredging Co., 134 N. Y. 156, distinguishing Hay v. Cohoes Co., 2 N. Y. 159; Tremain v. Cohoes Co., 2 N. Y. 163; St. Peter v. Denison, 58 N. Y. 416.

The doctrine is well established in this State that public officers

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Art. 4. Consequential Damages.

lawfully employed in making public improvements and corporations engaged in the performance of work of a public nature, authorized by law, are not liable for consequential damages occasioned by it to others, unless caused by misconduct, negligence, or unskillfulness. Atwater v. Trustees, 124 N. Y. 602 (608), citing numerous authorities.

When a municipal corporation has general authority by statute to make a public improvement in a public street which does not involve direct encroachment upon private property, it is not liable for consequential damages, unless they are caused by negligence, misconduct, or want of skill on the part of its agents or servants. Uppington v. City of New York, 165 N. Y. 222 (229).

Where the property of an abutting owner is damaged, or even his easements interfered with in consequence of the work of an improvement in a public street conducted under a lawful authority, he is without remedy or redress, even though no provision for compensation is made in the statute. Whatever detriment the improvement may be to the abutter in such cases is held to be damnum abseque injuria. Fries v. N. Y. & H. R. R. Co., 169 N. Y. 270 (277), citing Radcliff's Exrs. v. Mayor, etc., of Brooklyn, 4 N. Y. 195; Folmsbee v. City of Amsterdam, 142 N. Y. 118; Talbot v. N. Y. & H. R. R. Co., 151 N. Y. 155; Rauenstein v. N. Y., L. & W. Ry. Co., 136 N. Y. 528; Muhlker v. N. Y., N. H. & H. R. R. Co., 173 N. Y. 549.

But where the injury is so direct as to amount to an invasion of a private right, which no legislative sanction can justify or excuse, a recovery may be had. Huffmire v. City of Brooklyn, 162

N. Y. 584.

An act done under a lawful authority, if done in a proper manner, will not subject the party doing it to an action for the consequences, whatever they may be, nor will a man be answerable for the consequences of enjoying his own property in the way such property is usually enjoyed, unless an injury results to another from the want of proper care or skill on his part. But an action will lie where a man goes beyond the legitimate use of his own property; where he enters or casts anything upon the land of another; where he diverts a stream of water from his neighbor's land, without having title to anything more than the usufruct; or where he uses his own property in such a negligent and improper manner as to cause injury to others. Radcliff's

Art. 4. Consequential Damages.

Executors v. Mayor, etc., of Brooklyn, 4 N. Y. 196, cited and followed in Rauenstein v. N. Y., L. & W. R. R. Co., 136 N. Y. 528 (537).

Municipal corporations, engaged in the performance of works of a public nature authorized by law, are not liable for consequential damages occasioned thereby, to others, where private property is not directly encroached upon, unless such damages are caused by misconduct, negligence, or unskillfulness. Atwater v. Trustees of Village of Canandaigua, 124 N. Y. 602.

When a municipal corporation has general authority by statute to make a public improvement in a public street, which does not involve direct encroachment upon private property, it is not liable for consequential damages, unless they are caused by negligence, misconduct, or want of skill on the part of its servants or agents. (Atwater v. Trustees of Canandaigua, 124 N. Y. 602; Radcliff v. Mayor, etc., 4 N. Y. 195; Transportation Co. v. Chicago, 99 U. S. 635; 2 Dill. on Mun. Corp., § 1029; Shearman & Redfield's Negligence, § 272.) In such cases the corporation is the agent of the State, and acts done in the proper exercise of governmental powers do not make such agent liable at common law, even if they indirectly affect, but do not directly invade private property. If the work is unlawful, the injury willful, or the damages are owing to the failure of the proper authorities to exercise due care or skill, there is no exemption from liability, even when the undertaking is wholly for the benefit of the public. Uppington v. City of New York, 165 N. Y. 222 (229).

When in the exercise of authority conferred upon them by the legislature, municipal corporations perform acts as a result of which some indirect or consequential injury is sustained by an individual, the latter has no right of action for such injury. Such injuries are damnum absque injuria. But when a municipal corporation takes the property of an individual it must pay for it. Huffmire v. City of Brooklyn, 162 N. Y. 584 (591).

When the sovereign power of a State has interfered for a public purpose by a law expressly and specifically authorizing a direct and certain act, party performing such act is not liable for any consequential damages he may have sustained by reason of the defendant's having obeyed the mandate of the State. Fries v. N. Y. & N. H. R. R. Co., 169 N. Y. 270 (277, 283).

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