
    AMOS R ENO, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY and THE MANHATTAN RAILWAY COMPANY, Appellants.
    
      Injunction—Judgment, to beco'nie operative only in event of defendants declining to avail themselves of a grace or privilege tendered by it, effect of granting the grace—Testimony bearing on the question as to what grace or privilege should be extended, admission of not in.
    
    On the trial of the action the court received evidence as to the extent of injury to the permanent value of the premises in question and adjudged that such permanent value had been diminished to the amount of $10,000; and further adjudged, that after sixty days defendants be enjoined and restrained, etc., unless within said sixty days they paid or tendered to plaintiff the said sum of $10,000, and a certain deed, in the judgment provided for, to be executed by plaintiff. Held, no error.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 7, 1889.
    Appeal by defendants from judgment entered Upon findings made at special term.
    
      The provisions of the judgment which came under consideration on the appeal, are as follows :
    “ And it is further adjudged, that the construction and operation of the elevated railroad owned and operated by the said defendants, opposite the premises No. 6 Morris street, in the city of New York, the property of the plaintiff, and situate at the northeast corner of Morris street and New Church street, or Trinity Place, extending eighty-three feet and three inches or thereabouts along the easterly side of said New Church street, has diminished the permanent value of the said premises to the amount of ten thousand dollars.
    “And it is further adjudged, that after the expiration of sixty days from the date of the entry of this judgment and the service of a copy thereof, with notice of entry upon the defendants’ attorneys, the defendants the said, the Metropolitan Elevated Railway Company, and the Manhattan Elevated Railway Company, and each of them, and all persons under them be, and they hereby are enjoined and restrained from operating their railroad in said New Church street, opposite the plaintiff’s said premises, or from continuing the railroad at that place, unless within the said sixty days, the defendants shall have paid or tendered to the plaintiff or his attorney thé said sum of ten thousand dollars with interest thereon, from the 29th day of June, 1888, and a sufficient deed for execution by the plaintiff to convey to the defendants, or either of them, all the interest, property, rights and easements of the plaintiff in and to said New Church street, in front of the said premises taken by the defendants by the erection and operation of their said railroad as the same existed on the 29th day of June, 1888, and the plaintiff shall thereupon have neglected or refused to execute said deed.”
    
      Davies & Rapallo, attorneys, and Charles A. Gardiner and Brainard Tolies, of counsel for appellants, argued:
    I. The judgment is erroneous, because it absolutely enjoins the operation of the defendants’ railway unless the defendants tender to the plaintiff the sum of $10,000. The judgment leaves but two courses open to the defendants: (1) To submit to the operation of the injunction. (2) To purchase the plaintiff’s easements in New Church street at the price fixed by the court. There was a third course which the defendants asked to have left open to them, namely, the acquisition of plaintiff’s easements by the exercise of the power of eminent domain. This alternative the learned judge below refused to leave open. Under the judgment as it stands, even should they acquire the plaintiff’s easements by condemnation proceedings, they would be restrained from making use of the rights thus acquired for the operation of their railway. The defendants submit that there is no precedent for such a refusal. On the contrary, they direct the attention of the court to the fact that the alternative, which the defendants requested the court to leave open, is one which has been regarded as peculiarly suited to the circumstances of such cases as the one at bar. Henderson v. The New York Cent. R. R. Co., 78 N. Y. 423 ; Story v. The New York Elevated R. R. Co., 90 N. Y. 179 ; Glover v. Manhattan Ry. Co., 51 N. Y. Super. Ct. 1; Methodist Society v. Brooklyn El. R. R. Co., 46 Hun, 530; Vick v. City of Rochester, 46 Hun, 607; Lohman v. St. Paul, etc., R. R. Co., 18 Minn. 174; (a.) The statutory method of appraisement is the one directed by the constitution. Sec. 7 of art. 1 of the constitution of the state of New York. It has been decided that the method prescribed by the constitution for ascertaining the compensation to be made under such circumstances is exclusive, and that any other mode of appraisement is unconstitutional. Menges v. City of Albany, 56 N. Y. 374; Hilton v. Bender, 69 N. Y. 86. (b.) The statutory method is peculiarly suited to the nature of the case, (c.) The initiation and supervision of the statutory proceedings constitute part of the exclusive jurisdiction of the supreme court upon which this court should with extreme reluctance infringe. The supreme court asserts jurisdiction to entertain condemnation proceedings in these cases, even after a judgment of injunction in another court. Matter of Kearney, Daily Reg., April 14th, 1888 ; Matter of Elevated R. R. Cos., 18 N. Y. St. Rep. 144; Insurance Company v. Morse, 20 Wall. 445 ; Doyle v. Continental Insurance Company, 94 U. S. 535. (d.) The amount of the award by the learned trial judge for the permanent impairment of the value of plaintiff’s premises by the taking of his easement in New Church street, was based upon such slight and unsatisfactory evidence that a re-examination by commissioners appointed expressly for that purpose is desirable.
    ■ II. The judgment is inconsistent and erroneous, in that it adjudges that the plaintiff’s premises have already been permanently depreciated in value in the sum of ten thousand dollars, and at the same time directs the discontinuance and removal of defendants’ railroad. The portion of the judgment which adjudges that the plaintiff’s property has been permanently diminished in value to the amount of ten thousand dollars, is directly opposed to the remainder of the judgment. It assumes that the injury to the permanent value of plaintiff’s property has already been inflicted, and that the damage has already been suffered. The language used in this portion of the judgment is such as would have justified a provision in the judgment that the plaintiff recover against the defendants the sum of $10,000 as damages already suffered. The defendants submit that this provision should be' stricken from the judgment. It serves no useful purpose. No relief is, at this time, granted the plaintiff upon it. The only effect which it can have, and the effect which it is evidently intended to have, is to bind the defendants as an adjudication in any subsequent controversy with respect to this property. If the defendants should submit to the operation of the injunction and remove their structures, it would afford a basis for an application to the court for a money judgment. Upon such an application it wTould be represented that the final clause of the present judgment was intended only as a means of enforcing the payment of the amount of the permanent depreciation in the value of his property adjudged to have been suffered by the plaintiff, and that that remedy having failed, the court should grant some other means of enforcing the payment. Only by a re-examination of the merits of the case could it be discovered that the clause referred to was a superfluity and did not express the judgment of the court. We cannot believe that it is the intention of the court to adjudge that the plaintiff has already suffered damage by a permanent depreciation in the value of his property. If condemnation proceedings were instituted by the defendants, this portion of the judgment, which is not a determination of any issue raised by the pleadings, and which is not essential to any relief now granted by the court, would be invoked by Mr. Eno -as a prior adjudication of the issue of damages. Upon the discontinuance and removal of defendants’ structures and the payment of all the loss which the plaintiff has suffered up to this time by reason of the diminished rental value of his property, the plaintiff will be restored to his former position, and the defendants should be free from all further liability. Another ground for striking this provision from the judgment is, that it is not a determination upon an issue raised by the pleadings. Neither the complaint nor the answer requests any finding by the court of the amount of the permanent depreciation in the value of plaintiff’s property, or presents in any way that issue to the court for adjudication.
    
      John E. Parsons, attorney, and Mr. Man of counsel, for respondent.
   By the Court.—Sedgwick, Ch, J.

This was an equity action in which the plaintiff asked for a permanent injunction restraining the defendants from operating or maintaining their elevated railroad in front of plaintiff’s premises.

The defendants object to the judgment that it absolutely enjoins the operation of the defendants’ railway, unless the defendants tender to the plaintiff the sum of $10,000.

The testimony shows that the plaintiff was entitled to an absolute and unconditional judgment of injunction and the condition by which the defendants might be relieved from such an injunction was, a grace or privilege to the defendants of which they cannot complain. The N. Y. National Exchange Bk. v. The Metropolitan Elevated Railway Co. et al., 53 N. Y. Super. Ct. 511. This decision was affirmed by the court of appeals.

I am of opinion, that it was not injurious to the defendants that the court should hear testimony as to what was the proper sum to be named in the condition that has been alluded to, and to specifically find what sum the defendants should pay if they wished to be freed from their obligation to abate the wrong, that consisted in their illegal maintenance and operation of their road. The court did not adjudge that the defendants should pay the sum. If all these matters were stricken from the case, there would remain an unassailable judgment that the defendants should stop persisting in their wrong to the plaintiff. To the general position that the defendants desire now to acquire the plaintiff’s property in a legal manner, the plaintiff is right in replying, that there had been full opportunity for that before the judgment was rendered.

The judgment should be affirmed with costs.

Freedman and Ingraham, JJ., concurred.  