Biggart v. Manhattan R. Co. — 35 N.Y. St. Rep. 381

Majority

p. 381

Robert Biggart, Resp’t, v. The Manhattan R. Co. et al., App’lts.

(New York Common Pleas, General Term,

Filed January 5, 1891.)

Headnote

Railroads—Elevated—Damages—Findings.

In a proceeding to restrain the operation of an elevated railroad, and for damages, the referees refused a request to find that plaintiff is not entitled to recover damages for deterioration of the neighborhood caused by the construction and operation of the road. Held, no error.

Appeal from judgment in favor of plaintiff.

Julian T. Davies and Brainerd Tolles, for app’lts; Henry A. Foster, for resp’t.

Appeal from a judgment of injunction and for damages. Action to restrain the maaintenance and operation of defendant’s railway, and to recover for past injuries to plaintiff’s property from the presence and operation of said railway.

The single error urged in impeachment of the judgment is the refusal of the referees, by whom the case was tried, to find, as a conclusion of law, that “ plaintiff is entitled to recover damages for 'deterioration of the neighborhood caused by the construction and operation of defendants’ road.” So far as this refusal may be supposed to affect the amount to be paid by defendants in avoidance of the injunction, if error at all, it is not an error available for reversal of the judgment. Lawrence v. The Metropolitan Elevated Railroad Company et al., now decided, 35 N. Y. State Rep., 39.

But the refusal of the finding is no error, even in respect of the recovery for past damages. It is a preposterous assumption that the learned referees allowed anything to plaintiff as a substantive ground of recovery for the deterioration of the neighborhood, i. e., for injury to other people’s property, and a court cannot with propriety be called upon to negative an obviously and indisputably absurd proposition. Besides, the conclusion of law propounded by defendants was utterly irrelevant to any claim of plaintiff apparent in the complaint or presented on the trial, and for that reason alone was properly rejected by the referees. But that the fact of the deterioration of the neighborhood caused by defendants’ railroad was competent and relevant evidence on the issue as to the deterioration of plaintiff’s property is expressly affirmed in Ducker’s case, 106 N. Y., 157 ; 8 N. Y. State Rep,. 599, where the court says: “ To measure and appreciate the individual • loss to plaintiff, the nature and extent of the general injury was properly and necessarily considered.”

We see no error in the record, and the judgment must be affirmed.

Judgment affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur.