Majority
p. 1114DE FOREST et al., Respondents, v. MANHATTAN RY. CO. et al., Appellants. (Supreme Court, Appellate Division, First Department. March 12, 1897.)
Headnote
Action by Robert W. De Forest and another against the Manhattan Railway Company, the Metropolitan Elevated Railway Company, and the New York Elevated Railroad Company.Brainard Tolies, for appellants.
W. G. Feckham, for respondents.
We do not think, under the rule heretofore established in these cases, that there was evidence to sustain the finding of the referee as to the damages sustained by the Fulton National Bank prior to the time of the conveyance by the bank to the plaintiff. That amount, therefore, must be disallowed, as must the interest allowed on that amount to the date of the report. It also seems that the plaintiff was allowed damages for the period from the 1st day of January, 1890, to the 1st day of
p. 1115
May, 1890. The evidence showed that during that time the premises were not occupied, but that the plaintiffs were engaged in making the necessary repairs to make the property comply with the lease, which commenced on the 1st day of May, 1890. We think that the amount for those four months, from January 1st to May 1st, should also be disallowed. The amount, therefore, that will be disallowed, is the sum of $8,808.30, allowed as damages sustained by the Fulton National Bank; $1,631.86, interest on such damages to date of report; and $433.-33, being the amount of damages awarded to the plaintiffs as having accrued between January 1, 1890, and May 1, 1890,—aggregating $5,-873.49, which, deducted from the total recovery, leaves a balance due to the plaintiffs of $25,397.63. We think that the amount awarded hy the referee, with this exception, was moderate, and was amply sustained by the evidence. No question of law is presented upon the appeal which requires examination. The judgment is therefore modified by reducing the total award to $25,397.63, and as thus modified affirmed, without costs to either party.