
    Anna B. White et al., Resp’ts, v. The Manhattan Railway Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    Railroad—Elevated—Consent to operation.
    One of the members of a firm, which was plaintiffs’ predecessor in title, gave a written consent in the name of the firm to defendants to construct and operate the road in front of the premises. Held, that this was a mere license, revocable at will, and that the firm by the sale of the property, and plaintiffs by commencing this action, signified their intention to revoke it.
    Appeal from a judgment entered upon a decision rendered by the special term upon the trial of the issues presented by the pleadings.
    
      Julien T. Davies and J. 0. Thompson, for app’lts; Leo G. Dessar and Joseph P. Riley, for resp’ts.
   Lawrence, J.

It is quite apparent from the evidence in this case that the plaintiffs’ property and easements have been greatly damaged by the erection of the structures of the defendants. It is insisted, however, that under the consent which was signed by W. N. Seymour & Company, or rather by one of the members of that firm with the firm’s name, all right to any compensation for the impairment of the easements attached to the property described in the complaint was waived and lost. To that proposition we do not accede. We regard the consent which was given by one of the members of the firm in question as being merely a license, revocable at will, and that the co-partners by the sale of the property to the plaintiffs’ testator, and the plaintiffs by bringing this action, signified their intention to revoke it See Wiseman et al., executors, v. Lucksinger, 84 N. Y., 31; Murdock v. The P. P. & C. I. R. R. Co., 73 id., 579 ; Fargis v. Walton, 107 id., 399; 12 St. Rep., 60. It may also well be doubted whether Mr. Brush, the partner who signed the memorandum with the partnership name was authorized to transfer the rights of the other partners. Even if the evidence of the expert Martine, which was excepted to, was, under the authority of the McGean case, 117 N. Y., 219; 27 St. Rep., 337, improperly admitted, we fail to see that it affected the judgment of the justice in finally disposing of the case. We do not think that any error was committed by the learned justice as to the amount of damages which have been sustained by the plaintiffs either as to fee value or as to rental value, and the judgment below will therefore be affirmed, with costs and disbursements.

O’Brien, J., concurs in the result.  