Nooney v. New York Elevated Railroad — 17 N.Y.S. 111

Majority

p. 111

Nooney v. New York El. R. Co. et al.

(Supreme Court, General Term, First Department.

December 31, 1891.)

Headnote

Elevated Railway Companies—Injuries to Basements—Occupation by Tenants.

In an action against an elevated railroad company to recover damages for injury to plaintiff’s easement, the fact that the property injured had been for several years prior to the institution of the action in the possession of tenants offers no obstacle-to plaintiff’s recovery of past damages.

Appeal from judgment on report of referee.

Action by Robert B. Nooney against the New York Elevated Railroad Company and another to recover damages for injuries to easement. From a judgment for plaintiff, defendants appeal.

Affirmed.

Argued before Van Brunt, P. J., and Barrett and Andrews, JJ.

p. 112

Davies, Short <£■ Townsend, (Julien T. Davies and Joseph E. Lord, of counsel,) for appellants. Gannon & Atwater, (Henry G. Atwater, of counsel,) for respondent.

No question of importance arises in this case. The findings of fact are well supported by the evidence, and the sums awarded for past damages and fee value are fair and reasonable.. The appellants’ point that it was error to award past damages because the property had been in the possession of tenants, holding under the plaintiff, for several years prior to the commencement of the action, has been decided against them so frequently that further reference to it is superfluous. As to the award of damages down to the time of the trial, see the opinion handed down in the case of Kane against these same defendants, ( 17 N. Y. Supp. 109 .) The judgment should be affirmed, with costs.