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Flood v. Brooklyn Elevated Railroad

27 N.Y.S. 662 Court N.Y. Gen. Term Decision date 1894-02-12 English

Delivered by CULLEN, J.

Contents

Majority

p. 662
(75 Hun, 601.)
FLOOD v. BROOKLYN EL. R. CO. et al.
(Supreme Court, General Term, Second Department.
February 12, 1894.)

Headnote

1. Elevated Railboads—Injuries to Abutters—Action fob Past Damages.
In an action for damages caused by the operation of defendant’s elevated railroad in front of plaintiff’s premises, the court properly refused to charge that the jury should consider the effect of their verdict on the question of fee damages, then pending in condemnation proceedings.
3. Same—Evidence.
In such case, evidence as to noise is admissible, though it would not be in an action for the fee damages.
Appeal from circuit court, Kings county.
Action by Barnard Flood against the Brooklyn Elevated Railroad Company and another to recover damages to plaintiff’s property by the construction and operation of defendants’ railroad.
1 For concurring opinion of Mr. Justice Dykman, see 27 N. Y. Supp. 1111 .
p. 663
From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed.
Argued before DYKMAN, PRATT, and CULLEN, JJ.
Stephen M. Hoye, for appellants.
Hoadly, Lauterbach & Johnson, for respondent.

This is an appeal from a judgment for the plaintiff entered on the verdict of the jury. The action was for damages to plaintiff’s property by the construction and operation of defendants’ railroad. The rule of damages was correctly charged by the court, and to the charge no exception, in this respect, was taken. There was the usual conflict of testimony that is found in this class of cases. It would not be profitable to discuss the evidence at length. We think it was sufficient to sustain the verdict, and the judgment must stand, unless error was committed on the trial.

Two alleged errors are claimed. The court refused to instruct the jury to consider the effect of their verdict on the question of fee damages then pending in condemnation proceedings. If it could, the jury were to render a verdict in the matters submitted to them on the evidence presented, regardless of consequences. Another error claimed is the admission of certain evidence, which, it is contended, affected only the fee value. We think that the evidence also affected the usable or rental value. It is also urged that the court erred in admitting evidence as to noise. This was admissible in an action of this character, though not in one for fee damages. Kane v. Railroad Co., 125 N. Y. 164 , 26 N. E. 278 . The judgment and order denying new trial should be affirmed, with costs.

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