Pryor, J.
On an appeal by both parties each solicits a new trial, and on the record before us we have no alternative but to accommodate the decision to their desire.
The action is to restrain a nuisance and for damages. The learned trial judge finds as a fact that the nuisance “has materially lessened the beneficial use and enjoyment of plaintiff’s premises, and that it will continue to lessen the bene ficial use and enjoyment of plaintiff’s premises.” And, accordingly, he concludes that, as a deduction of law, the plaintiff is entitled to injunctive relief, but he estimates that six cents is an adequate award of damages.
Here must be fallacy either in the premise or conclusion. A party is entitled to indemnity commensurate with his injury, and nominal damages is the recompense only of nominal loss. If the sum awarded to plaintiff be sufficient he sustained no substantial injury; if he sustained substantial injury the amount is insufficient.
The dilemma involves error fatal to the judgment. If the plaintiff suffered substantial loss the compensation afforded him is inadequate. If his injury be unsubstantial, he has no right to an injunction. “ The injunction is so dependent upon the damages that the General Term could not with propriety reverse the judgment as to damages and permit it to stand as to the injunction.” Gray v. R. R. Co., 128 N. Y. 499, 509 ; Genet v. D. & H. Co., 122 id. 505, 529; Purdy v. R. R. Co., 13 N. Y. Supp. 295, 297.
The award of nominal damages may not be vindicated on the ground that the evidence was only of an uncertain and indeterminate amount, because the court found six cents to he the sum to which “ the plaintiff is entitled,” and because as against a wrongdoer the injured party is not bound to proof of his exact loss. Wakeman v. Wheeler, etc., Co., 101 N. Y. 205, 216; United States T. Co. v. O’Brien, 143 id. 284, 289 ; Drucker v. R. R. Co., 106 id. 157; Brush v. R. R. Co., 26 Abb. N. C. 73, 80.
Judgment reversed and new trial ordered, without costs to either party.
, Halt, Ch. J., and Gieg-eeioh, J., concur.
Judgment reversed and new trial ordered, without costs to either party.