Hyperlawhypertext legal database Mortimer v. Metropolitan Elevated Railway Co. 54 N.Y. Super. Ct. 322

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Mortimer v. Metropolitan Elevated Railway Co.

54 N.Y. Super. Ct. 322 22 Jones & S. 322 Court N.Y. Super. Ct. Decision date 1887-04-13 English

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p. 322
WILLIAM Y. MORTIMER, and another, as Executors, etc., Respondents, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

Headnote

Elevated Railroad—Judge's charge, error in fact claimed, must be shown affirmatively.
In an action for damages to plaintiffs’ house on Division street by the construction and maintenance of defendants’ elevated railroad in front of said house, the trial judge charged the jury that the plaintiffs owned the fee of one half of the street in front of his house. The appellants maintained that the charge was erroneous in point of fact, but did not show this affirmatively from the evidence in the case.
Held, That the appellants were bound to show affirmatively that this error was committed.
Before Sedgwick, Ch. J., and Freedman, J.
Decided April 13, 1887.
Appeal by defendants from judgment entered on verdict of jury and from order denying motion for new trial, made upon the judge’s minutes.
Edward Sapallo and Davies & Sapallo, attorneys, and Julien T. Davies, and Charles A. Gardner, of counsel, for appellants.
John E. Parsons and John W. Pirsson, attorneys, and John Alex Beall, of counsel, for respondents.

This was an action for damages during

p. 323
certain years to plaintiffs’ house, abutting on Division street, from the maintaining by the defendants of their elevated railway, in front of that house. The learned judge charged the jury, that the plaintiffs owned the fee of one h°.1f of the street, in front of the house. The appellants maintain, that this charge was erroneous. The appellants are bound to show affirmatively that an error was committed. This has not been done. The case states, that by stipulation “ Exhibits 2, 5, 6, 7, 8 and 9, deeds showing title to the property in suit, are not printed” but may be produced on the argument of the appeal. These have not been produced, and may have of themselves been a sufficient ground of the eharge.

The exceptions that relate to the admission of testimony should be overruled. The matter admitted consists of circumstantial evidence as to the rental values in dispute.

Judgment and order affirmed with costs.