18 N.Y.S. 132 | New York Court of Common Pleas | 1892
The judgment enjoins and restrains the defendants from maintaining and using their elevated railroad in front of plaintiff’s premises, 356 Ninth avenue, in the city of 24ew York, but provides that, if the defendants shall pay or tender to the plaintiff, within a time fixed in the judgment, the sum of $1,250, with interest, as and for payment of the value of the easements in 24inth avenue attached or appurtenant to the plaintiff’s premises, taken, appropriated, or interfered with by the maintenance and operation of defendants’ road, and accept a conveyance of such basements in proper form, executed by the plaintiff, no injunction shall issue. The judgment also awards to plaintiff the sum of $884.80 for past damages sustained from May 19, 1882, to March 9, 1891, the date of the trial of the action, with interest from the date of the trial. It is contended that it was error to grant an injunction against the future running of trains, and to include damages for any injuries incidental thereto in fixing the sum to be paid as the value ol' the, easements. This contention is not discussed on principle, but is based solely on the authority of Sperb v. Railway Co., (Sup.) 16 N. Y. Supp. 392, and American Bank-Note Co. v. New York El. Ry. Co., (N. Y. App.) 29 N. E. Rep. 302. This court in Peyser v. Railway Co., (1885,) 13 Daly, 122, said: “ All the evidence as to the darkening of plaintiff’s windows by the passage of trains and the emission of smoke and steam was properly admitted. The elevated structure was built to permit the passage of these trains; and to attempt to distinguish between the obstruction of light, caused by the structure exclusively,
The only other question in the case is whether damages should have been allowed on account of injuries inflicted upon the premises for a time subsequent to the commencement of the action. Appellants contend they should not. The cases cited by the appellants, as far as they have any relation to the question, are with one exception in actions at law. The rule in equity which seeks to render complete justice to the parties is otherwise. There the court allow’s damages up to the time of the trial. Baptist Church v. Oliver St., etc., Church, 73 N. Y. 95. See, also, Barrick v. Schifferdecker, 123 N. Y. 52, 25 N. E. Rep. 365. The judgment should therefore be affirmed,, with costs. All concur.