New York Connecting Railroad v. Queens Used Auto Parts, Inc.

273 A.D. 908, 77 N.Y.S.2d 505, 1948 N.Y. App. Div. LEXIS 5224

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 15, 1948
• Status: Published

Opinion

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 value o£ the property furnishes a basis for computation and assessment of damages even though proof of a larger measure of damages might well have been adduced by recourse to conventional proof from a real estate expert. The proof is sufficient to require an assessment to the extent of $5,985. (Civ. Prac. Act, §§ 980, 1011; Willis v. McKinnon, 178 H. Y. 451; Vandevoort V. Gould,, 36 Ñ. Y. 639.) Present: — Lewis, P. J., Carswell, Johnston, Adel and Sneed, JJ. Settle order on notice. [See post, p. 973.]