Fitzpatrick v. New York Elevated Railroad — 17 N.Y.S. 943

Majority

p. 943

Fitzpatrick, Respondent, v. New York El. R. Co. et al., Appellants.

(Supreme Court, General Term, First Deportment.

December 31, 1891.)

Headnote

Appeal from special term, New York county.

Action by John Fitzpatrick against the New York Elevated Railroad Company and the Manhattan Railway Company to recover damages for the erection and maintenance of defendant’s elevated railroad in the street in front of plaintiff’s premises, and for an injunction.

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

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

No question of importance is presented 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.