Mattlage v. New York Elevated Railroad — 47 N.Y. St. Rep. 106

Majority

p. 106

Charles F. Mattlage, App’lt, v. The New York Elevated Railroad Co. et al., Resp’ts.

(New York Common Pleas, General Term,

Filed June 27, 1892.)

Headnote

Railroad—Elevated—Appeal.

From a judgment in an action against an elevated road both parties appealed, plaintiff claiming that damages for loss of rental value were insufficient, and defendant that certain items were improperly allowed. The defendants’ appeal was first heard, and the judgment was modified. Held, that as that decision substantially disposed of all the questions raised on plaintiff’s appeal, the judgment should be affirmed on that appeal.

Appeal from a judgment entered on the verdict of a jury rendered at trial term.

Charles D. Ridgway, for app’lt; Julien T. Davies and Brainard Tolles, for resp’ts.

—The plaintiff is now, and for many years has been the owner of the premises on the southwest corner of Warren and Greenwich streets in this city. The lot, on which is erected a five-story brick building, is twenty-six feet six inches on Greenwich, and eighty feet deep on Warren street. The defendants had erected on. Warren street, opposite the top of the second story windows of plaintiff’s building, a station which had extended down that street in front of plaintiff’s premises sixty feet, and which, with its projecting roofs, cover the whole of Warren street from curb to curb. To compel the removal of this structure, and incidentally to recover damages for its erection and maintenance, the plaintiff commenced an action in this court, in equity, which resulted in a judgment in favor of the plaintiff. When that judgment was entered, the defendants obtained an injunction against its enforcement until the general term had affirmed it, and then a further stay pending an appeal to the court of appeals. When that appeal was about being reached, the defendants withdrew it and paid the judgment. Thereupon the present action was brought to recover the damages sustained by the plaintiff after the judgment, and before the station at Warren street was removed.

The jury found a verdict in favor of the plaintiff on the following items of plaintiff's claim, to wit:

Fur loss of rental value.......................... $1,000 00

For gas bill.................................... 50 00

For exemplary damages........................ 06

For legal expenses.............................. 450 00

Making an aggregate of $1,500 06

For which judgment was entered, and from which both parties take an appeal; the plaintiff’s appeal being on the ground that the damage for loss of rental value was insufficient, and the defendants’ upon the ground that the gas bill, legal expenses and exemplary damages were improperly allowed.

The appeals were separately argued, the plaintiff’s having been

p. 107

argued at the May general term, 1891, and the defendants’ at the November term. This court handed down a decision in the latter case in February last modifying the judgment. 44 St. Bep., 289. Owing to the death of Judge Allen who sat with the other judges the decision was overlooked, but the decision on defendants' appeal has substantially disposed of all the questions raised upon this appeal. We have, however, carefully examined the record and do not think that any sufficient reason has been shown for disturbing the verdict of the jury in regard to the loss to the rental value of the premises, and the judgment appealed from is, therefore, affirmed as to this, with one bill of costs to the defendants, respondents on that appeal

Bischoff and Pryor, JJ., concur.