Stevens v. New York Elevated Railroad — 29 N.Y. St. Rep. 361

Majority

p. 361

Byan K. Stevens, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

(New York Superior Court, General Term,

Filed January 6, 1890.)

Headnote

Railboads—Injury to beal pbopebty by elevated.

An action against an elevated railroad to recover for diminution of rental value by reason of the operation of the road, may be maintained by the owner of premises in front of which the road runs irrespective of the question whether he owns the fee of the street.

Appeal from judgment in favor of plaintiff.

Samuel B. Rodgers, for app’lts; G. L. Van Nest, for resp’t.

The decision of the general term of this court, in the Abendroth Case, 54 Super. Ct., 420; 7 N. Y. State Rep., 43, is binding upon this court, and determines adversely to the defendant the question as to the right of the plaintiff to maintain this action and to the relief granted by the judgment, for it is there stated by Truax, J., that it was immaterial for the purposes of that case whether the plaintiff had or had not any interest in the fee of Pearl street in front of and adjacent to his premises, and in that opinion the chief judge concurred.

The other objections taken by counsel for the defendant have been examined, but we do not think that any error was committed that required a reversal of the judgment.

The judgment appealed from is,' therefore, affirmed, with costs.

Sedgwick, Ch. J., concurs.