Hughes v. Metropolitan Elevated Railroad — 29 N.Y. St. Rep. 516

Majority

p. 516

Mary E. Hughes, Resp’t v. The Metropolitan Elevated R. R. Co. et al., Appl’ts.

(New York Superior Court, General Term,

Filed January 6, 1890.)

Headnote

Railroads—Injunction—Mortgage.

Where there is a mortgage upon plaintiff’s premises, a provision in the injunction order that upon payment of the value of the easement taken, plaintiff, besides conveying her estate, should furnish a release from the mortgage, is proper.

Appeal from judgment entered upon findings at special term.

Davies & Sapallo, for app’lts; Edwin M. Felt, for resp’t.

With a single exception the merits of this case are the same as those of Watson v. Same Defendants, 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, that the plaintiff, beside conveying her estate, should furnish to the defendants a release of the property from the mortgage. Although the mortgagee had no interest in the rental, the mortgage was an incumbrance upon that part of the plaintiff’s easement which defendant 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 the defendants a release from the mortgage. I do not think that this should affect the disposition of the costs upon the affirmance of the judgment.

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

Freedman, J., concurs.