Otter v. Metropolitan Elevated Railway Co. — 43 N.Y. St. Rep. 973

Majority

p. 973

John M. Otter, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts.

Headnote

Appeal from a judgment, entered on the report of a referee, in favor of the plaintiff.

Davies & Rapallo, for app’lts; Saekett & Bennett, for resp’t.

This is an appeal by the defendants from a judgment in favor of the plaintiff, entered on the report. of a referee. The judgment restrains and enjoins the defendants from maintaining and operating their elevated railway in front of plaintiff’s premises, No. 946 Second avenue, in the ■city of New York, unless the defendants pay to the plaintiff the sum of $3,100 in exchange for a conveyance and release of the property taken by them; and the judgment also decrees that the plaintiff recover of the defendants the sum of $1,783.76, past damages, interest, costs and extra allowance.

We find no questions of law arising on this appeal that have not already been

p. 974

repeatedly decided against the defendants, except so far as the rulings on the admission of evidence is concerned; and as to these rulings of the referee, we find no error of sufficient weight to warrant a reversal of the judgment.

A fair preponderance of evidence sustains the findings of the referee, and justifies the judgment.

It, therefore, follows that the judgment appealed from must he affirmed, with costs.

Sedgwick, Ch. J., and Dugbo, J., concur.