Jones v. New York El. R. — 18 N.Y.S. 952

Majority

p. 952

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

(Common Pleas of New York City and County,

General Term.

April 4, 1892.)

Headnote

Appeal from judgment on report of referee.

Action by Augusta L. Jones against the New York Elevated Railroad Company and the Manhattan Railway Company to restrain defendants from

p. 953

maintaining their elevated railway in front of plaintiff’s premises, and for past damages.

Argued before Bookstaver, Bischoff, and Pryor, JJ.

Davies do Rapallo, (Julien J. Davies and John C. Thomson, of counsel,) for appellants. Sackett & Bennett, (Charles Gibson Bennett, of counsel,) for respondent.

Two grounds only are assigned for reversal of judgment, viz., that the referee erred in his conclusion that the diminution of light and air caused by passing trains on defendants’ elevated railroad structure in front of plaintiff’s premises constituted a taking of the easements of light and air appurtenant thereto, and that, in determining the sum representing the depreciation of the premises in fee value and to be paid as an alternative for avoiding the injunction, the referee erroneously included the effect upon the premises, as regards the diminution of light and air, resulting from the continued operation of the railroad in the future. Both questions were determined adversely to the appellants in Smith v. Railroad Co., 18 N. Y. Supp. 132 , (decided by the general term of this court in March last,) and the present does not appear to be distinguishable from that case. The judgment should therefore be affirmed, with costs.