Johnson v. New York Elevated Railroad — 43 N.Y. St. Rep. 816

Majority

p. 816

Francis E. Johnson, Individually and as Ex’r, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts. (2 Cases.)

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

Railroad—Elevated—Findings.

When the judge hás expressly decided that as matter of law damagésfor certain matters-could-not be awarded as an alternative for avoiding an. injunction, it cannot be supposed that he nevertheless included them in-, his computation of the amount to be paid for that purpose.

Appeal from judgment in favor of plaintiff, entered upon decision of the court at special term.

Davies & Sapallo, for app’lts; Francis 0. Seed, for resp’t.

The principal ground upon which a reversal-of the judgments in these cases is asked is, that the learned judge-before whom they were tried having found as a conclusion of law that damages should not he awarded for future running of trains, it, was error to include damages of that character in determining what amount should he paid for the-easements to prevent the-issuance of an injunction. But there is nothing in" the whole-record to show that the judge did any such thing. He made certain, findings of fact that the engines in passing emitted steam, smoke, ashes and cinders, and that noise was created and that these-things • necessarily would continue; but it is evident those facts-were found as leading up and contributing to the right to the injunction only, and there is nothing to show that when he came to-fix the value of the easements he made any allowance for the-matters referred to. It is not to be supposed that when the-learned judge expressly decided that as matter of law damages; for the matters referred to could not be awarded as an alternative;

p. 817

for avoiding an injunction, he nevertheless included them in his computation of what amount should be paid for that purpose, and when all the findings are read together there is no inconsistency in them.

There was enough evidence to support the determination of the-court as to past damages, and also as to the value of the easements, taken, and we can find no substantial error in the record.

The judgments must be affirmed, with costs.

Van Brunt, P. J., concurs.