Morange v. New York Elevated Railroad — 81 N.Y. Sup. Ct. 393

Majority

p. 393

Hymen Morange, Respondent, v. The New York Elevated Railroad Company and Another, Appellants.

Headnote

Refusal to make assumption from facts found.

It is not error for a trial court, having found certain facts, to refuse to find, in addition to such facts, assumptions based thereon.

Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 29th day of August, 1893, upon the decision of the court rendered after a trial at the New York Special Term.

E A. Tuttle, for the appellants.

W. R. Page, for the respondent.

This action was brought to recover past and fee damages caused by the construction and operation of the elevated railroad in the Bowery upon which the property of the plaintiff abuts.

We see no reason for disturbing the conclusion at which the learned judge below arrived upon a consideration of the evidence adduced before him upon the trial.

p. 394

The fallacy of the argument presented by the learned counsel for the appellants arises from the fact that he seems to assume that the rise in real estate, between the time of the commencement of ..the construction of the defendants’ railroad and the present time, is attributable exclusively to the benefits conferred upon such property by the construction and operation of such railroad, entirely ignoring the fact that from 1873 to and until the year 1877, there was a depression in real estate, the result of the panic in 1873, such as this city has seldom seen — a recovery from which, whether the elevated railroads were built or not, was as certain as that this country would again become prosperous.

It is not considered necessary to discuss the evidence in detail. It seems to justify the conclusion at which the learned court below arrived.

Exceptions were taken to the refusal of the court to find certain proposed findings of fact, and the complaint is made that as the court did find certain other facts projxised by the defendants, it was error to refuse those findings to which our attention has been called. But it will be seen that the findings which have been requested present elements which are not supported by the testimony, and seem to be in contradiction thereof. The learned court found the physical facts, and refused to find assumptions based thereon. Our attention is called to a large number of cases in respect to this question of damages in cases of this description, but we do not think that any of them in any degree conflict with the course pursued by tlie court in the trial of the action at bar.

"We are of opinion, therefore, that the judgment should be affirmed, with costs.

Follett and Parker, JJ"., concurred.

Judgment affirmed, with costs.