
    Bernard Flood, Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 12, 1894.)
    
    1. Damages—Elevated Railway.
    In an action against an elevated railway for past damages, the effect of the verdict on the question of fee damages, then pending in condemnation proceedings, is irrelevant.
    
      2. Evidence—Elevated hailway—Noise.
    Evidence as to noise is admissible in an action against an elevated railway for past damages.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    
      Stephen M. Hoye, for app’lts; Hoadly, Lauterbach & Johnson, for resp’t.
   Cullen, J.

This is an appeal from a judgment for the plaintiff entered on the verdict of the jury. The action was for damages to plaintiff’s property by the construction and operation of defendants’ railroad. The rule of damages was correctly charged by the court, and to the charge no exception, in this respect, was. taken. There was the usual conflict of testimony that is found in this class of cases. It would not be profitable to discuss the evidence at length. We think it was sufficient to sustain the verdict, and the judgment must stand, unless error was committed on the trial.

Two alleged errors are claimed. The court refused to instruct the juryito consider the effect of their verdict on the question of fee damages then pending in condemnation proceedings. If it could, the jury were to render a verdict in the matters submitted to them on the evidence presented, regardless of consequences. Another error claimed is the admission of certain evidence, which, it is contended, affected only the fee value. We think that the evidence also affected the usable or rental value. It is also urged that the court erred in admitting the evidence as to noise. This was admissible in an action of this character, though not in one for fee damages. Kane v. N. Y. El. Railroad Co., 125 N. Y. 164; 34 St. Rep. 876.

The judgment and order denying new trial should be affirmed,, with costs.

All concur.  