We think the claimant is entitled to recover from the state the damages sustained on account of the acts complained of, for the reason stated in the opinion of MERWIN, J. (37 App. Div. 57). But we think that the claimant *Page 578 should not be allowed interest prior to the entry of judgment herein, upon the item of $60,000 awarded as damages for the permanent restoration of the railroad embankment, or upon the item of $24,017.50 awarded for such restoration in case the proper authorities of the state consent that the claimant may restore the embankment by extending the same into the reservoir upon the lands of the state, as provided for in the judgment.
Immediately after the railroad embankment was washed away there was a temporary trestle constructed across the break, at an expense of $11,572.37, which sum, with the interest thereon, has been allowed as damages to the claimant. The permanent embankment had not been constructed at the time of the entry of judgment herein, and, consequently, the claimant had not been required to pay therefor. The temporary structure has been used by the railroad company in the meantime, and, consequently, it has operated to save the claimant the use of the money required for the construction of the permanent embankment.
We think, therefore, that the judgment should be modified by deducting the interest allowed upon the item of damages awarded for permanent restoration of the embankment, and as so modified affirmed, without costs in this court to either party.
PARKER, Ch. J., BARTLETT, VANN, CULLEN and WERNER, JJ., concur; GRAY, J., not sitting.
Judgment accordingly.