Hughes v. Metropolitan Elevated Railway Co. — 57 N.Y. Super. Ct. 379

Majority

p. 379

MARY E. HUGHES, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

Headnote

Action for injunction and damages for construction and operation of railway in front of premises of plaintiff—Suspension of judgment after award by commissioners to condemnthe property and payment of the award.

The head notes in this case are similar to those in the preceding case of Watson against the same defendants, except that in this case there was an outstanding mortgage upon the property of $7,000, that covered the easement in question, and this court held on appeal, that the judgment should be modified so as to provide that upon payment of the value of the easement taken the plaintiff should deliver to defendants a release from the mortgage.

Before Sedgwick, Ch. J. and Freedman, J.

Decided January 6, 1890.

Appeal from judgment entered upon findings at special term.

Davies & Rap alio, attorneys, and Edward S. Rapadlo and Edwin D. Worcester, Jr., of counsel, for appellants.

Edwin M. Felt, for respondent.

With a single exception the merits of this case are the same as those of Watson against the same defendants decided this term. The difference alluded to is, that in the present case it was proved that there was upon plaintiff’s premises, a mortgage in the sum of $7.000. In my opinion, there was no' objection to directing that upon the defendants’ paying -the sum estimated to be the value of the easement, in fee, that the plaintiff, beside conveying her estate, should furnish to the defendants a release of the property from the

p. 380

mortgage. Although the mortgagee had no interest in the rentals, the mortgage was an encumbrance upon that part of the plaintiff’s easements which defendants had appropriated. The judgment should be modified, so as to provide that upon payment of the value of the easement taken, the plaintiff should deliver to defendants a release from the mortgage. ■ 14o not think that this should affect the disposition of the costs upon the affirmance of the judgment.

The judgment is modified in the respect mentioned, and, as modified, affirmed with costs.

Freedman, J., concurred.

Same case.

Same term.

Appeal from an order denying defendants’ motion that the injunction in the judgment be perpetually or permanently suspended.

Same counsel.

The disposition of a similar appeal in the case of Watson against the same defendants should be made in this case. The order is to be reversed and the motion granted upon terms to be directed at the settlement of the order upon notice.