Shady v.Metropolitan Elevated Railroad — 17 N.Y.S. 958

Majority

p. 958

Shady, Respondent, v. Metropolitan El. R. Co. et al., Appellants.

(Superior Court of New York City, General Term.

January 29, 1892.)

Headnote

Appeal from judgment on report of referee.

Action by James H. Shady against the Metropolitan Elevated Railroad Company and the Manhattan Railway Company to restrain defendants from maintaining and operating an elevated railroad in front of plaintiff’s premises.

Argued before Freedman, McAdam, and Gildersleeve, JJ.

Davies <£ Rapallo, for appellants. Edwin M. Felt, for respondent.

The judgment appealed from fixes the past damages at $435, awards the plaintiff $169.93, costs, and enjoins the defendants from maintaining their elevated railroad in front of the plaintiff’s premises No. 942 Sixth avenue, unless they pay the plaintiff $1,500, within the time specified, together with interest thereon from the date of the entry of judgment. The appellants urge that the awards are excessive, and not justified by the evidence. To prove this, their counsel has made an analysis showing the rental value of the property in question, and also the difference in value of other property in the neighborhood before and since the building of the elevated road. The testimony bearing upon these points was, no doubt, carefully weighed by the learned referee in his consideration of the case, and the fair preponderance of evidence justifies the judgment. There are no errors in the rulings of sufficient weight to warant a reversal. The case of Sperb v. Railway Co., (Sup.) 16 N. Y. Supp. 392 , cited by the appellants, is in conflict with the decision of Suarez v. Railway Co., (Sup.) 15 N. Y. Supp. 222 , an authority of equal value. The case of Hine v. Railway Co., (Sup.) 13 N. Y. Supp. 510 , cited by the appellants, has been decided adversely to the appellants by the court of appeals. 29 N. E. Rep. 69 . For the reasons above indicated, the judgment is affirmed, with costs.