Renwick v. New York Elevated Railroad

27 Jones & S. 591

Opinion

After the commencement of this action, which was for injunctive relief restraining defendants from maintaining or operating an elevated railroad In front of plaintiff’s premises, and for past damages, the defendants instituted condemnation proceedings, procured the appointment of. commissioners, had the value of plaintiff’s easements appraised and had paid the award which the plaintiff had accepted and waived all right of appeal. These facts appeared on the trial. It also appeared that before the trial defendants had moved at special term for leave to serve a supplemental answer and the motion had been denied. The judgment entered below granted the injunctive relief, unless within a time thereby limited defendants produced proof satisfactory to the court that they had caused plaintiff’s easements to be condemned and acquired according to law prior to the date of the judgment. The judgment also awarded past damages. On the appeal defendants’ counsel claimed that by reason of the condemnation proceedings and the action had thereon, the court erred in granting the injunctive' relief and in retaining jurisdiction of that cause of action, for any purpose whatever. The Court (Freedman, J-:, writing, Dugro and Gilder-sleeve, JJ., concurring) held this position of defendants Untenable and affirmed the judgment, with costs.