Majority
p. 562Phebe R. Kissam, Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts. (Supreme Court, General Term, Second Department, Filed May 13, 1895.)
Headnote
Damages — Elevated bail way — Release.A judgment for damages against an elevated railway for interfering with easements appurtenant to real estate must require * a release of the easements claimed to be injured, and of any mortgage or other lien that may exist thereon.
Appeal from a judgment entered • on a verdict in favor of plaintiff.
William H. Paige, Jr., for app’lts ; Francis Russell Whitney, for resp’t.
The findings of the trial court upon the question of value are not without support in the testimony, and we cannot
p. 563
say that the proof preponderated in favor of a contrary result. While the plaintiff’s case is not a strong one, we are of the opinion that the conclusion of fact must stand. None of the exceptions taken require a reversal of the judgment. The judgment is, however, defective in form, and must be modified so as to provide that the plaintiff, upon receiving the amounts adjudged as damages, shall execute and deliver to the defendants a release of the easement.claimed to be injured, and a release of any mortgage or other lien that may exist thereon. So modified, the judgment must be affirmed, without costs.
All concur.