McMahon v. New York Elevated Railroad — 37 N.Y.S. 958

Majority

p. 958

McMAHON v. NEW YORK EL. R. CO. et al.

(Supreme Court, Appellate Division, First Department.

March 6, 1896.)

Headnote

Appeal from superior court of New York City, special term.

Action by Terence McMahon against the New York Elevated Railroad Company and another for damages to plaintiff’s premises from construction and operation of defendant’s road. From a judgment for plaintiff entered on the report of a referee, defendants appeal. Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, O’BRIEN, and INGRAHAM, JJ.

J. O. Nichols, for appellants.

Adam Wiener, for respondent.

We are all of opinion that the evidence in this case is entirely insufficient to sustain the report and judgment. A new trial must be awarded, because there is nothing in the record which would justify a modification. The testimony is too slight to enable the court to reduce the awards to any fixed sum. The case was tried seemingly without appreciation of the necessity for proper and adequate proof such as is required in all these cases. The judgment must be reversed, and a new trial ordered before another referee, to be appointed by the court, with costs to the appellants to abide the event.