273 A.D. 908 | N.Y. App. Div. | 1948
Action to recover possession of real property in Queens County, which is part of a tract over which the plaintiff, by condemnation proceedings, acquired a perpetual easement for railroad purposes. Plaintiff had judgment that it was entitled to the immediate possession of the property. Defendant appealed therefrom on the ground, inter alia, that there had been an abandonment of the property by the plaintiff; and plaintiff appealed from so much of the judgment as failed to award damages. Judgment modified on the law and the facts by inserting a decretal paragraph awarding plaintiff damages in the sum of $5,985, with interest. As thus modified, the judgment, insofar as appealed from, is unanimously affirmed, with costs to respondent-appellant. There was no abandonment by plaintiff established in respect of the parcel of property here involved, {¿ip v. New York Central Railroad Co., 140 Mise. 62, affd. 236 App. Div. 654, affd. 260 N. Y. 692, motion for reargument denied 261 N. Y. 554, certiorari denied 290 U. S. 636; Kouwenhoven V. New York Rapid Transit Corp., 256 App. Div. 253, affd. 281 H. Y. 811, motion for reargument denied 282 H. Y. 593; Roby V. New York Central & H. R. R. R. Co., 142 H. Y. 176, 181; 44 Am. Jur., Railroads, § 131.) The defendant unlawfully occupied the premises and obtained rental from a portion thereof. The unchallenged proof of admissions in respect of rental
