Ehret v. New York & Harlem Railroad — 77 N.Y.S. 1125

Majority

p. 1125

EHRET, Respondent, v. NEW YORK & H. R. CO. et al., Appellants.

(Supreme Court, Appellate Division, First Department.

July 8, 1902.)

Headnote

Action by George Ehret against the New York & Harlem Railroad Company and the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendants appeal. Modified and affirmed.

Ira A. Place, for appellants.

Thomas P. Wickes, for respondent.

The questions presented, save as to some rulings upon evidence to which exception was taken, and which we do not regard as very material, are similar to those in Pape v. Railroad Go. (herewith handed down) 77 N. Y. Supp. 725 . The injunction granted should be modified, for the same reason as in the case referred to, namely, that the learned trial judge overlooked the fact that, in addition to the width of the cut, which was 56 feet, there were sustaining walls, which made the entire width of the ground occupied and used for railroad purposes 61 feet 8 inches. The fee damages here awarded should also ,be modified, by reducing them to $8,000, and . the extra allowance should accordingly be re

p. 1126

duced. As so modified, the judgment should be affirmed, without costs.

HATCH and INGRAHAM, JJ., concur. VAN BRUNT, P. J., and McLAUGHLIN, J., dissent.