97 N.Y.S. 588 | N.Y. App. Div. | 1906
This action was brought to restrain the defendants from maintaining and operating a railroad upon a structure in Fourth avenue opposite the plaintiffs’ premises on the southwest corner of One Hundred and Twénty-ninth street and Fourth avenue, in the city of Hew York.
Prior to the year 1828 one Charles Henry Hall was the owner of the premises in question, and on the 16th day of September, 1828, Hall conveyed the premises to one Bussel by a conveyance which would include the fee of the easterly half of Fourth avenue in front of the plaintiffs’ premises. Subsequently, on the 1st day of May, 1834, Bussel reconveyed this property to said Charles Henry Hall by the same description by which he had received title to the property. On the 10th day of October, 1839, Charles Henry Hall conveyed the premises to David P. Hall by a description which would convey the fee of the westerly half of the said avenue. By a resolution of the common council, approved by the mayor February 1, 1832, the Hew York and Harlem Bailroad Company was permitted to construct and lay down, in pursuance of its' act of incorporation (Laws of 1831, chap. 263), a double or single-track rail
It seems quite unnecessary to refer to the various cases decided by the Court of Appeals prior to the reversal by the Supreme Court of the United States of the cases of Muhlker v. Harlem Railroad Co. (197 U. S. 544) and Birrell v.New York & Harlem R. R. Co. (198 id. 390), for in the case of Sander v. State of New York (182 N. Y. 400) the Court of Appeals, referring to these various cases,
The only question, therefore, that seems to us to be open is whether .the awards made by the court for this property were sustained by the evidence and whether error was committed upon the trial which requires a reversal of the judgment.
There are no exceptions to rulings upon evidence which require examination, as'they have all been disposed of by other cases. The court awarded to the plaintiffs $6,200 damages caused to the rental
I think this testimony justified the award for fee damage, and my conclusion is that the judgment appealed from was right and should be affirmed, with costs. ' .
O’Brien, P. J., Laughlin, Clarke and Houghton, JJ., concurred.
Judgment affirmed, with costs.