Bolger v. Metropolitan Elevated Railway Co.

Headnote

Easements taken by elevated railroad—Valuation thereof by trial court will be reviewed by general term and if not sustained by the evidence, the injunction may be modified by suspending its operation for a reasonable time to enable the defendants to take condemnation proceedings. Blumenthal v. N. Y. Elevated R. R. Co., 42 N. Y. State Rep., 683 followed. Judgment also modified by deducting from the money part thereof so much of the extra allowance as was based on the sum fixed as the valuation of the easements.

Appeal by defendants from a judgment entered upon the decision of a judge at special term in plaintiff’s favor. The action was brought to secure an injunction and incidental damages with respect to defendants’ elevated railroad in First avenue in the city of New York upon which plaintiff’s premises abutted. The trial court fixed the alternative to the injunction or “ fee damage ” at $3,500. The general term found that the evidence was not sufficient to justify a finding of more than $3,000, but that substantial damage was shown.