Hughes v. Metropolitan El. Ry. Co. — 8 N.Y.S. 535

Majority

p. 535

Hughes v. Metropolitan El. Ry. Co. et al.

(Superior Court of New York City, General Term.

January 6, 1890.)

Headnote

Elevated Railroads—Appropriation op Easements.

In an action by an abutting property owner against an elevated railway company for appropriating plaintiff’s easement in the street, where a judgment has been rendered directing plaintiff to convey her estate to defendant on payment of the estimated damages, if the premises are subject to a mortgage the judgment should also direct plaintiff to furnish defendant with a release therefrom.

Appeal from special term.

Action by Mary E. Hughes against the Metropolitan Elevated Bailroad Company and another. Judgment for plaintiff, and defendants appeal.

Argued before Sedgwick and Freedman, JJ.

Davies & Rapallo, for appellants. Edwin M. Felt, for respondent.

With a single exception the merits of this case are the same as those of Watson v. Same Defendants, ante, 533, (decided this term.) The difference alluded to is that in the present case it was proved that there was upon plaintiff’s premises a mortgage in the sum of $7,000. In my opinion, there was no objection to directing that, upon the defendants’ paying the sum estimated to be the value of the easement in fee, the plaintiff, besides conveying her estate, should furnish to the defendants a release of the property from the mortgage. Although the mortgagee had no interest in the rentals, the mortgage was an incumbrance upon that part of the plaintiff’s easement which defendants had appropriated. The judgment should be modified so as to provide that, upon payment of the value of the easement taken, the plaintiff should deliver to defendants a release from the mortgage. I do not think that this should affect the disposition of the costs upon the affirmance of the

p. 536

judgment. The judgment is modified in the respect mentioned, and, as modified, affirmed, with costs.

ON MOTION TO SUSPEND INJUNCTION.

The disposition of a similar appeal in the case of Watson v. Same Defendants, ante, 533, should be made in this case. The order is to be reversed, and the motion granted, upon terms to be directed at the settlement of the order, upon notice.