Majority
p. 740(86 Hun, 598.) KISSAM v. BROOKLYN EL. R. CO. et al. (Supreme Court, General Term, Second Department. May 13, 1895.) Argued before BROWN, P. J., and DYKMAN and CULLEN, J J.
Headnote
Elevated Railroads—Injuries to Abutters—Judgment.In an action to enjoin the operation of an elevated railroad, and for damages caused by interfering with the easements appurtenant to plaintiff’s premises, a judgment awarding damages to plaintiff must require a release of the easements interfered with, and of any mortgage that may exist thereon.
Appeal from special term, Kings county.
Action by Phebe R. Kissam against the Brooklyn Elevated Railroad Company and another for injunction and damages. Judgment was entered in favor of plaintiff, and defendants appeal.
Modified.
William H. Page, Jr., for appellants.
Francis Russell Whitney, for respondent.
The findings of the trial court upon the question of value are not without support in the testimony, and we . cannot .say that the proof preponderated in favor of a contrary' result. While the plaintiff’s case is not a strong one, we are of the opinion
p. 741
that the conclusions of fact must stand." None of the exceptions taken require a reversal of the judgment. The judgment is, however, defective in form, and must be modified so as to provide that the plaintiff, upon receiving the amounts adjudged as damages, shall execute and deliver to the defendants a release of the easement claimed to be injured, and a release of any mortgage or other lien .that may exist thereon. So modified, the judgment must be affirmed, without costs. All concur.