The judgment is well supported by the evidence, except as to the amount of damages.
The learned referee erred in awarding damages to the plaintiff from the 22d day of June, 1895, the time of the commencement of the first action, instead of from June 15, 1897, the time of the commencement of the next two actions which were settled in April, 1898. These two actions were for damages by reason of the maintenance' of the same nuisance for which the first was brought, and it appears by the testimony of the plaintiff’s attorney that there was a settlement of these two suits and of tlie judgment in the first action; and the amount agreed upoii was paid to him for the plaintiff. The judgment .was satisfied, and on stipulations stating that the two actions were settled, orders of discontinuance were entered. ■ The damages recoverable in those two suits were such as had accrued at the time of the" commencement of the actions (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98), and those must have been embraced in the settlement.
It is true that the plaintiff’s attorney testified that the settlement *283was made on the express understanding that the defendant would put his property in such a condition as to prevent further overflow on the plaintiff’s premises, and while this would not preclude the plaintiff from maintaining an action for damages thereafter arising, it would not permit her to recover for those within the settlement. She must be limited to such damages as have subsequently accrued.
But this error does not necessitate a reversal of the judgment, as all the elements appear from which the amount which should be deducted from the recovery can be determined.
The item of $120 allowed for repairs for 1896, 1897, 1898 and 1899, included $32:69 paid for repairs in 1896, and $35.12 paid for repairs caused by the overflow on May 5 or 6, 1897. These two items, amounting to $67.81, should be deducted. The referee, also, erroneously allowed as damages from June 22, 1895, to October 16, 1899, the item of $123 for “loss of rent” ■ besides the $344.25 “ depreciation of the rental value.” The true measure of damages is the depreciation in rental value by reason of the nuisance. (Jutte v. Hughes, 67 N. Y. 267.) The $123 should be deducted from the amount of recovery. The $344.25 depreciation in rental value from June 22,1895, to October 16, 1899, should be reduced by deducting the proportionate value from June 22, 1895, to June 15, 1897, the time of the commencement of the actions which were settled, which proportionate deduction is $162.
I find no other errors for which the judgment should be reversed or modified, and am of the opinion that there should be deducted therefrom the sums of $67.81, $123 and $162, amounting in the aggregate to the sum of $352.81, and as thus reduced, should be affirmed, without costs of the appeal to either party.
All concurred, except Mbbwik,. J., for reversal.
Judgment modified as per opinion, and, as modified, affirmed, without costs to either party.