Crimmins v. Metropolitan Elevated Railroad — 69 N.Y. St. Rep. 797

Majority

p. 797

Thomas Crimmins, Resp’t, v. Metropolitan Elevated Railroad Company et al., App’lts.

(Supreme Court, General Term, First Department,

Filed October 18, 1895.)

Headnote

Damages—Elevated railway.

A lessee is not entitled to damages caused by the construction and operation of an elevated railroad, where it does not appear that his term

p. 798

began before the road was constructed, though the present lease recites that it is a renewal of a former lease which began before such construction and named a different lessor, in the absence of proof of the manner in which the lessor of the so-called renewal lease acquired title.

Appeal from a judgment in favor of plaintiff.

Frederick Allis, for app’lts; Benjamin Yates, for resp’t.

We see no way in which a reversal of this judgment can be avoided, because of the failure to show any devolution of the title of the first lessor upon the last lessors.' The attention of the counsel was pointedly drawn to that point upon the trial, but, without showing the slightest connection between the lessors in the two leases, a recovery is sought upon the ground that the second lease is a renewal of the first. It is true that the second lease recites that it is a renewal of the old lease, but the lessors are different, and there is no proof of how the lessors of the so-called “ renewal lease” acquired title if any they had. We do not see how we can avoid this objection. The case seems to have been tried in all other respects, but the point urged is fatal.

Judgment reversed, and new trial ordered, with costs to appellants to abide event.