Bolger v. Metropolitan Elevated Railway Co. — 48 N.Y. St. Rep. 399

Majority

p. 399

Thomas Bolger, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

(New York Superior Court, General Term,

Filed October 24, 1892.)

Headnote

Railroad—Elevated—Injunction.

Where the evidence abundantly establishes the fact of substantial damage to the fee value of property by the maintenance of an elevated railroad, but does not sustain a finding of damage to the amount named in the decree as an alternative to the granting of an "injunction, the decree may be modified by providing that an injunction issue without an assessment of fee damage, with a suspension thereof for a reasonable time to enable defendant to acquire title to the property or easements taken.

Appeal by defendants from a judgment after trial of the issues at the equity term.

Davies, Short & Townsend, for app’lts; E. B. & C. P. Cowles, for resp’t.

With a single exception, which will' be presently noted, the judgment is right. The exception relates to that part of the judgment which provides that an injunction issue against the maintenance of so much of defendants’ railway and structure as is within the limits of First avenue in front of -plaintiff’s premises, unless the defendants shall pay to him the sum of $3,500. A careful review of the evidence upon this branch of the case has. satisfied .us that the proof does not sustain a finding of more than $3,000 damage. But as substantial damage has been abundantly established, it is only necessary to modify the judgment according to the rule laid down in Blumenthal v. N. Y. Elevated R. R. Co., 42 St. Rep., 683 , and by deducting from the money part the sum of $175 awarded, as an allowance upon the amount of the fee damage.

As thus modified the judgment should be affirmed, without costs to either party. Order to be settled on notice.

Freedman, Dugro and Gildersleeve, JJ., concur.