p. 282certain street was an excessive and inconsistent street use, and that the street had not been kept open in like manner as the other public streets in the city of New York are and of right ought to be; and the trial judge, among other findings, found, that the street, from the time of its opening, continuously had been and then was appropriated and kept open for a public avenue, highway and thoroughfare in the city of New York, in like manner as the other public streets in the said city are and of right ought to be; but, nevertheless, rendered judgment for the plaintiff.
Before Feeedman, Tettax and Ingeaham, JJ.Decided November 21, 1889.Appeal from judgment rendered at equity term. The facts sufficiently appear in the opinion.
Davies & Rapallo, attorneys, and Edward S. Rapallo and Brainard Tolies, of counsel, for appellants, on the point considered and decided, argued:
The finding of the trial judge, “ That the said avenue from henceforth [its opening] continuously has been and now is appropriated and kept open for a public avenue, highway and thoroughfare in the city of New York in like manner as the other public streets and avenues in the said city are and of right ought to be,” is in irreconcilable conflict with the conclusions of law of the learned trial judge and with the judgment herein.If it be considered by this court that the finding of fact just quoted is inconsistent with any other finding, the appellants desire to call attention to the following decisions of the ' court of appeals, in each of which it is held that when two findings of fact are inconsistent the appellant is entitled, in support of his exceptions to the conclusions of law, to have that taken as true which is the more favorable to himself. Bonnell v. Griswold, 89 N. Y. 122 ; Schwinger v. Raymond, 83 Ib. 192; Conselyea v. Blanchard, 103 Ib. 222, 231; Redfield v. Redfield, 110 Ib. 671; Green v. Roworth, 113 Ib. 462. The question passed
p. 283upon by the learned trial judge in this finding has been recognized in all the elevated railway cases, as a question of fact to be determined from a consideration of the facts and circumstances of each particular case, and upon examination of the nature and character of the particular structure under consideration. Story case, 90 N. Y. 122 ; Lahr case, 104 Ib. 291; Fifth National Bank v. N. Y. Elevated R. R. Co., 24 Fed. Rep. 114 ; Greene v. N. Y. C. & H. R. R. Co., 65 How. 165 .Saclcett & Bennett, attorneys, and Charles Gibson Bennett, of counsel, for respondent, submitted no points on the question considered and decided.
This is an appeal from a judgment rendered at an equity term of this court after a trial of the issues. The plaintiff sued as the owner of certain easements appurtenant to certain premises situate on Second avenue in the city of New York, which were alleged to have been taken or at least seriously impaired by reason of the construction, maintenance and operation of the elevated railway of the defendants in front of plaintiff’s premises. The judgment awarded damages to the plaintiff for the injuries inflicted in the past, and also gave an injunction to prevent the continued maintenance and operation of the railway unless a certain compensation was made. The whole theory of the action is that the construction, maintenance and operation of the elevated railway constitute an excessive and inconsistent street use, and that by reason of such construction, maintenance and operation Second avenue had not been kept open in like manner as the other public streets and avenues in the city of New York are and of right ought to be. But the learned trial judge, after finding that Second avenue, past and in front of plaintiff’s
p. 284premises, had been laid out and opened as a public avenue under the Act of 1813, further found, as matter of fact, that the said avenue from henceforth (viz. its opening) continuously has been and now is appropriated and kept open for a public avenue, highway, and thoroughfare in the city of New York, in like manner as the other public streets and avenues in the said city are and of right ought to be. This finding is in irreconcilable conflict with the conclusions of law of the learned trial judge and with the judgment herein. From the fact that there are other findings which fully sustain the conclusions of law and the judgment, the fair inference is that, the finding referred to was made by inadvertence. It was made on the application of the plaintiff, and probably was not intended to be an unqualified finding. But in form it is unqualified, and it was made as a separate and distinct finding. This being so, and the Court of Appeals having repeatedly held, that whenever two findings of fact are inconsistent, the appellant is entitled, in support of his exceptions to the conclusions of law, to have that taken as true which is the more favorable to himself (Bonnell
v. Griswold, 89
N. Y. 122 ; Schwinger
v. Raymond, 83
Ib. 192; Conselyea v. Blanchard, 103
Ib. 231; Redfield
v. Redfield, 110
Ib. 671; Green
v. Roworth, 113
Ib. 462), a new trial must be ordered.
Another serious question is presented by the fact that the plaintiff acquired title to the premises to which the easements are claimed to be appurtenant, three or four years after the construction and the commencement of the operation of the elevated railway, and that she failed to connect herself with the street opening proceeding in which the easements originated, or with the title of some one who, as owner of the'premises, had a right to the easements prior to the construction of the elevated railway. The defect, if it be any, may be obviated on a new
p. 285trial which, as already shown, must be had, and consequently it is not deemed necessary to decide the question now, nor to express any opinion on thé remaining questions which have been argued.
Judgment reversed and new trial ordered, with costs to appellants to abide the event.
Truax and Ingraham, JJ., concurred.