p. 412CRIMMINS v. METROPOLITAN EL. R. CO. et al.(Supreme Court, General Term, First Department.Headnote
Elevated Railroads—Injury to Abutters—Lessee.A judgment in favor of a lessee against an elevated railroad company for damages to the leased premises by reason of the construction of the railroad cannot be sustained where it appears that the lessee was in possession under a lease executed after the construction of the road, though he was also lessee in a previous lease executed by a different lessor, but containing a provision for a renewal, and expiring on the day the last lease was executed.
Appeal from special term, New York county.
Action by Thomas Crimmins against the Metropolitan Elevated Railroad Company and another to restrain the operation of defendants’ elevated railroad in front of plaintiff’s property, and for damages caused by the construction and operation of said road. There was a judgment in favor of plaintiff, and defendants appeal. Reversed.
For former reports, see 33 N. Y. Supp. 984 , and 34 N. Y. Supp. 1137 .
Argued before VAN BRUNT, P. J., and PARKER, J.Frederick Allis, for appellants.
Benjamin Yates, for respondent.
We see no way in which a reversal of this judgment can be avoided, because of the failure to show any devolution of the title of the first lessor upon the last lessors. The attention of the counsel was pointedly drawn to that point upon the trial, but, without showing the slightest connection between the lessors in the two leases, a recovery is sought upon the ground that the second lease is a renewal of the first. It is true that the second lease recites that it is a renewal of the old lease, but the lessors are different, and there is no proof of how the lessors of the so-called “renewal lease” acquired title if any they had. We do not see how we can avoid this objection. The case seems to have been tried in all other respects, but the point argued is fatal.
Judgment reversed, and new trial ordered, with costs to appellants to abide event.