Mulford v. Metropolitan Elevated R. Co. — 36 N.Y. St. Rep. 51

Majority

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John Mulford, Resp’t, v. The Metropolitan Elevated R. Co. et al., App’lts.

(New York Common Pleas, General Term,

Filed February 2, 1891.)

Headnote

Railroad—Elevated—Damages—Leased property.

In an action against an elevated railroad it is not error to allow damages for injury to rental value accruing after plaintiff had leased the property.

Appeal from a judgment in favor of plaintiff against defendants, rendered upon report of referees, to whom the issues in the action were referred by consent.

Edward B. Thomas, for app’lts; Frederick S. Wait, for resp’t.

The suit was brought to recover damages for injury to rental value of premises in West Fifty-third street, in the city of New York, for the six years preceding the action. During a part of the period for which damages were allowed by

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the referees the premises were occupied by a tenant under a lease from plaintiff. The counsel for the appellants claimed the referees had erred in assessing damages in favor of the plaintiff for injuries accruing after he had leased the property. This point was raised by a proper exception to the findings of the referees, and was the only one argued before us by the appellants.

We find upon examination that the point in question has been passed upon by the general term of this court adversely to the appellants. Werfelman v. Manhattan R. R. Co., 32 N. Y. State Rep., 682; Johnston v. Same, id., 685.

In the case first above mentioned, it is said: “ It was not an error to "allow a recovery for loss of rental value during the term of the unexpired lease of the premises when the plaintiffs purchased; these leases had, been made after the building of the road, and presumably the rent stipulated for it was lower than it would have been if the road had not been there.”

In disposing of this case we are controlled by this decision.

The judgment should be affirmed, with costs.

Allen, Bischoff and Pryor, JJ., concur.