Walsh v. Brooklyn Elevated Railroad — 59 N.Y. St. Rep. 620

Majority

p. 620

Mary A. Walsh, Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts.

(Supreme Court, General Term, Second Department,

Filed February 12, 1894.)

Headnote

Damages—Elevated bailboad—Easements.

The coireet rule of damages is applied, where the court finds that the premises were worth a specified sum less than they would have been, if the easements had not been taken.

Appeal from a judgment restraining defendants from operating the railroad in front of plaintiff’s premises, unless they pay her §500.

Hoadly, Lauterbach & Johnson (Wm. N. Cohen, of counsel), for app’lts; Stephen M. Hoye (Francis Russell Whitney, of counsel), for resp’t.

This is an appeal from a judgment awarding plaintiff an injunction unless the defendants pay $500 for damages to the fee of plaintiff’s property. Under the decisions of the court of appeals the trial court should have found that plaintiff’s easements in the street, of light, air, and access, were, in themselves, only of nominal value. Bookman v. N. Y. El. R. R. Co., 137 N. Y., 302 ; 50 St. Rep., 703 . But the failure to so find nowise affected the judgment. The court found as a matter of fact that the abutting premises were worth $500 less than they would have been had plaintiff’s easements not been taken. This was the, correct rule of damage. For that $500, judgment was given, and no award was made for the easements, in themselves. There was evidence that justified the finding, and it should not be disturbed.

Judgment appealed from should be affirmed, with costs.

•All concur.