Majority
p. 430Bolger v. Metropolitan El. Ry. Co. et al. (Superior Court of New York City, General Term. October 24, 1892.) Argued before Freedman, Dugro, and Gildersleeve, JJ.
Headnote
Appeal—Reversal—Modification.Where a judgment against an elevated railroad company enjoins it from operating its road in front of plaintiff’s property, unless it pays plaintiff certain damages, and such damages are greater than the proof warrants, but are shown to be of a substantial character at least, the judgment will not be reversed on appeal, but only modified. Blumenfhal v. RaAlroad Co., (Super. N. Y.) 17 £T. Y. Supp. 481, followed.
Action by Thomas Bolger against the Metropolitan Elevated Railway Company and another. From a judgment for plaintiff, entered after trial at the equity term, defendants appeal. Modified and afiSrmed.
Davies, Short & Townsend, for appellants. E. B. & C. P. Cowles, for respondent.
With a single exception, which will be presently noted, the judgment is right. The exception relates to that part of the judgment which
p. 431
provides that an injunction issue against the maintenance of so much of defendants’ railway and structure as is within the limits of First avenue, in front of plaintiff’s premises, unless the defendants shall pay to him the sum of $3,500. A careful review of the evidence upon this branch of the case has satisfied us that the proof does not sustain a finding of more than $3,000 damage. But, as substantial damage has been abundantly established, it is only necessary to modify the judgment according to the rule laid down in Blumenthal v. Railroad Co., (Super. N. Y.) 17 N. Y. Supp. 481 , and by deducting from the money part the sum of $175 awarded as an allowance upon the amount of the fee damage. As thus modified, the judgment should be affirmed, without costs to either party. Order to be settled on notice.