24 N.Y.S. 324 | The Superior Court of the City of New York and Buffalo | 1893
The learned counsel for the defendants, appellants, challenge the judgment, and assign numerous errors, each of which, they claim, calls for a reversal. We will take up such objections as seem to call for discussion in the order in which they are presented for our consideration in the able brief of the counsel for defendants, appellants.
1. It is claimed that “the amount fixed by the referee as past damages is excessive and unjust, and altogether unsupported by legal evidence.” The premises in question are at Hanover square, on the southerly side of Pearl street, near Old Slip, and are 24 feet 4 inches in width in front, 23 feet 2 inches in width in the rear, and about 86 feet deep. The premises are occupied by an old four-story building, which, down to 1878, when the railroad came, rented, as appears by the testimony, to a single tenant for $5,000 per annum. The year the railroad came $3,800 were spent in improvements, and the property had no tenant. Never since the coming of the railroad has the annual rent exceeded the sum of $2,600 to $2,700. The actual difference between the rent in 1878 and the rent in 1801, when the testimony was taken, was $2,400. Nothing could be clearer than that, since the coming of the railroad, there had been a diminution of rent. The problem the referee had to decide was what part of the diminution was attributable
2. It is claimed upon behalf of the appellants that “the proper parties are not before the court.” The parties to the action to
Under the appellants’ seventh point, it is urged that the referee erred in awarding costs and allowance to the defendants, respondents. In all equity cases, costs are discretionary, both at special and at general term. See Herrington v. Robertson, 71 N. Y. 280. Costs in equity actions referred to a referee are within the discretion of the referee. Phelps v. Wood, 46 How. Pr. 1. The referee, in making the award of costs herein, to which objection is taken, does not appear to have abused the discretionary power with which .he was vested by disregarding well-settled principles applicable thereto. The defendants, respondents, had a substantial claim against the defendants, appellants, the railroad companies, who elected that they be brought in. Their rights have been litigated, and we do not think they should forfeit costs because they do not occupy the nominal position of plaintiffs. Code, §§ 3230, 3253. It is not unusual to allow costs to one defendant against another in the . same case. Budd v. Munroe, 18 Hun, 316; Chester v. Jumel, (Sup.) 5 N. Y. Supp. 823. For these reasons, we think the judgment as to costs and allowance should not be disturbed. We can find no just reason for a reversal of the judgment. It must be affirmed, . with costs to plaintiff; and, since the defendants, respondents, have been compelled to argue additional questions to those presented by the appeal as against the plaintiff, costs must be awarded to the , defendants, respondents, also.