Hull v. New York Elevated Railroad — 60 N.Y. St. Rep. 726

Majority

p. 726

John Henry Hull, Resp’t, v. New York Elevated Railroad Company et al., App’lts.

(Supreme Court, General Term, First Department,

Filed May 18, 1894.)

Headnote

Railroads—Elevated—Release oe mortgage.

A judgment against an elevated railroad for fee damage to abutting premises will require, as a condition of its payment, a release of the mortgage thereon.

Appeal from a judgment awarding an injunction unless defendants pay a designated amount as fee and rental damages.

J. 0. Thomson, for app’lts; J. JT. Hull, in pro. per.

The main question involved in this case is a question of fact,—as to whether the. award was justified by the evidence. We are of opinion that it was, and do not think it necessary to rehearse the evidence, but merely give our conclusion, as derived from the argument and examination of the case. It is, however, claimed that one of the mortgagees was not required by the decree to release the mortgage in respect to the piece of property described in the action which is called “No. 1.” It is urged upon the part of the respondent that such release is not necessary, as« the mortgage in question has become merged. We do not think, in view of the condition of this record, that the defendants should be required to depend upon such merger, but that the decree in action No. 1 should be modified by requiring a release from the mortgage as a condition of payment, and, as modified, affirmed, without costs. In action No. 2 no such question exists, and the judgment should be affirmed, with costs.