Day v. New York Elevated Railroad

Superior Court of New York

Day v. New York Elevated Railroad

23 N.Y.S. 179

CourtThe Superior Court of the City of New York and Buffalo

DecidedMay 1, 1893

StatusPublished

This text of 23 N.Y.S. 179 (Day v. New York Elevated Railroad) is published on Counsel Stack Legal Research, covering The Superior Court of the City of New York and Buffalo primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Day v. New York Elevated Railroad, 23 N.Y.S. 179 (superctny 1893).

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Opinion

McADAM, J.

The judgment restrains the defendants from maintaining their elevated railway structure in front of No. 1009 Third avenue, until February 1, 1894, unless they pay the plaintiff $1,250, etc. The claim for past damages was waived, and the plaintiff was allowed the value, to the end of the first term of the plaintiff’s lease, (February 1, 1894,) and of so much of plaintiff’s easements of light, air, and access to said premises as had been taken by the defendants, such value being computed from the commencement of the action. The plaintiff is the owner of the building, and the lease contains covenants of renewal, but these were not taken into consideration in the allowance made by the trial court. As lessee, the plaintiff was entitled to recover the diminished rental value caused by the construction and operation of tie defendants’ road until the expiration of the first term demised. New York Nat. Exchange Bank v. Metropolitan El. Ry. Co., 53 N. Y. Super. Ct. 511, affirmed 108 N. Y. 660, 15 N. E. Rep. 445; Kearney v. Railroad Co., 129 N. Y. 76, 29 N. E. Rep. 70. This value was assessed upon legal principles, and the amount fixed is not excessive. The judgment provides for the usual injunction in such cases, which is not to take effect until 60 days after service of a copy of the judgment, and requires the execution of the necessary releases by the plaintiff upon tender of the $1,250, with interest. We find no errors in the rub ings or in the judgment appealed from, which must be affirmed, with costs.

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McADAM, J.

The judgment restrains the defendants from maintaining their elevated railway structure in front of No. 1009 Third avenue, until February 1, 1894, unless they pay the plaintiff $1,250, etc. The claim for past damages was waived, and the plaintiff was allowed the value, to the end of the first term of the plaintiff’s lease, (February 1, 1894,) and of so much of plaintiff’s easements of light, air, and access to said premises as had been taken by the defendants, such value being computed from the commencement of the action. The plaintiff is the owner of the building, and the lease contains covenants of renewal, but these were not taken into consideration in the allowance made by the trial court. As lessee, the plaintiff was entitled to recover the diminished rental value caused by the construction and operation of tie defendants’ road until the expiration of the first term demised. New York Nat. Exchange Bank v. Metropolitan El. Ry. Co., 53 N. Y. Super. Ct. 511, affirmed 108 N. Y. 660, 15 N. E. Rep. 445; Kearney v. Railroad Co., 129 N. Y. 76, 29 N. E. Rep. 70. This value was assessed upon legal principles, and the amount fixed is not excessive. The judgment provides for the usual injunction in such cases, which is not to take effect until 60 days after service of a copy of the judgment, and requires the execution of the necessary releases by the plaintiff upon tender of the $1,250, with interest. We find no errors in the rub ings or in the judgment appealed from, which must be affirmed, with costs.

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23 N.Y.S. 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/day-v-new-york-elevated-railroad-superctny-1893.

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