
    John Slater, Resp’t, v. The Manhattan Railway Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    1. Railroad—Elevated—Findings—Proximity of station.
    Where the plaintiff’s premises are situated two blocks from defendant’s station, a refusal of the referee to find that the presence of the station brings large numbers of persons into the immediate neighborhood, and its effect was advantageous to the business portion of the premises and a special benefit to the same for business uses, is not error of law calling for reversal, unless the evidence of that fact is clearly established by the evidence.
    2. Same.
    Where the referee has refused to find special benefits, it is proper for him to refuse to find that any special benefits should be set off againsl the damages.
    Appeal from judgment entered on report of referee.
    
      J. S. Wood, for app’lts ; G. A. B. Pratt, Jr., for resp’t.
   Per Curiam.

The only question in this case not settled by ■ prior adjudications of this court relates to the refusal of the referee to find, as requested by the defendants, that the presence of the station brings a large number of persons daily into Sixth avenue in the immediate neighborhood of the premises in suit and increases the traffic in and upon said avenue at this point, and that the effect of the proximity of defendants’ said station to the premises in suit is advantageous to the business portion of said premises, and produces a special benefit to the same for business uses. The station of the defendants’ railroad was situated at the comer ■of Fiftieth street and Sixth avenue, and the premises described in the complaint were at the corner of Fifty-second street and Sixth avenue, and Forty-eighth street and Sixth avenue, and not therefore in immediate proximity to the station. The evidence in the ■case would not justify us in saying that the fact was so clearly ■established as to make the refusal to find an error of law requiring us to reverse the judgment

And the refusal of the referee to find as a conclusion of law that, in estimating and fixing the sum which the defendant might ;pay to escape the injunction, the special benefit resulting from the proximity of the defendants’ station to the premises in suit should be offset against any consequential damage resulting to such lots and buildings respectively from the appropriation of or interference with the easements in Sixth avenue appurtenant thereto by the maintenance and operation of defendants’ railroad in front thereof, was not error, because it did not appear either from the evidence or from the findings of the referee that there were any such special benefits resulting from the defendants’ railroad to the-: premises in suit or either of them. The referee was not bound to pass upon abstract questions- of law which had no-relation to-the facts as proven before him and found by him. And in this connection- it should be -remembered that having refused to -find as a matter of fact that advantages accrued to the premises because-of the proximity of the station, it was entirely proper, that he should refuse to find what was, under such conditions of fact, simply an immaterial rule of law.

Ho other questions not heretofore settled by repeated adjudications of this court are presented, and further consideration there-, fore is not necessary.

The judgment should be affirmed, with costs.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.  