Missionary Society of St. Paul v. New York Elevated Railroad

Majority

p. 779

The Missionary Society of St. Paul, the Apostle, etc., et al., Resp’ts, v. The New York Elevated Railroad Company, e t al., App'lts.

(New York Superior Court, General Term,

Filed May 6, 1895.)

Headnote

Damages—Elevated -railway.

In an action against an elevated company for an injunction and damages, a claim that other land of the plaintiffs in the rear of the abutting premises, which has no appurtenant easement of light, air and access in and over the street in which the road is located, but abuts on the side streets, is benefited by the construction, maintenance and operation of the road and that such benefit should be set off against the fee damage; is untenable.

Appeal by defendants from judgment entered upon report of referee in favor of plaintiff.

Davies, Short & Townsend, for app’lts; Edwin M. Felt, for resp’t.

The judgment appealed from restrains the defendants from the further maintenance and operation of their elevated railroad in front of the plaintiffs’ premises unless within a -certain time the defendants pay to the plaintiffs the sum of $14,-700 with interest.

No past damages were awarded, owing to the fact that the plaintiffs’ property for which there was a recovery, consists partly of vacant lots and partly of land covered by a’ church building, which is not adapted for purposes of renting, but for use as a whole. That being so, all objections and exceptions which relate to testimony taken to show rental or past damage, may be considered as outside of this appeal.

The case fails to show that the referee considered noise as an element of damage in determining the fee damage.

The recovery was properly confined to the avenue lots extending from the westerly line of Ninth avenue west 100 feet, and to so much additional land as is actually covered by the church building. The defendants claim that other land of the plaintiffs in the rear of the premises.in controversy, and having no easement of light, air and access in and over Ninth avenue appurtenant to it, but abutting on the side streets, was benefited by the •construction, maintenance and operation of the elevated road on Ninth avenue, and that such benefit should be set off against the fee damage awarded by the judgment appealed from, is untena-. ble.

Upon the whole case we think the judgment is fairly maintained by the evidence, that substantial justice has been done, and that the record discloses no error which' calls for reversal.

The judgments should be affirmed, with, costs.

Sedgwick, O. J., concurs.