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Jamieson v. Kings County Elevated Railway Co.

26 N.Y.S. 127 Court N.Y. Gen. Term Decision date 1893-12-01 English

Delivered by DYKMAN, J.

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p. 127
JAMIESON et al. v. KINGS COUNTY EL. RY. CO.
(Supreme Court, General Term, Second Department.
December 1, 1893.)

Headnote

•'Elevated Railroads—Injuries to Abutters.
In an action to restrain the operation of defendant’s elevated railroad in the street on which plaintiff’s property abuts, and for damages, the court properly refused to find that the value of property on such street had been increased by the railroad, where there was evidence to warrant a finding that plaintiff had been injured in his property rights by the construction and operation of such road. Storck v. Railroad Co., 30 N. E. 497 , 131 N. Y. 514 , followed.
Appeal from special term, Kings county.
Action by Ella G-. Jamieson and another against the Kings County "Elevated Railway Company to recover damages with fee and rental walue of plaintiffs’ property, No. 799 Fulton street, in the city of Brooklyn, by reason of the construction and operation of defendant’s elevated railroad in such street, and for an injunction. There was a judgment in favor of plaintiffs, and defendant appeals.
Affirmed.
Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
Russell, Poste & Percy, for appellant.
Theodore B. Gates, for respondents.

This is an action to restrain the operation of the ■elevated railway of the defendant in front of the premises of the plaintiff in Fulton street in the city of Brooklyn, and for the recov

p. 128
cry of the damage resulting from such operation to the said property. The cause was tried before a justice of this court at special term without a jury. The evidence sustained the allegations of the complaint, and entitled the plaintiff to the relief demanded therein. The trial judge found the facts in favor of the plaintiff, and judgment was entered upon such findings, from which the defendant has appealed to this court. The case of Storck v. Railroad Co., 131 N. Y. 514 , 30 N. E. 497 , is sufficiently like this to be a controlling authority in favor of the plaintiff, and the decision in that case justifies this judgment. That case also justifies the admission of proof of the situation and rental value of other property contiguous to that immediately involved, and near the defendant’s structure. Upon the authority of that case and other similar cases in the court of appeals, the judgment should be affirmed, with costs. All concur.

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