
    S. CHARLES WELSH, as Executor, etc., Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY et al., Appellants.
    
      Inconsistent findings of fact or conclusions of law, effect of.
    
    In the case at bar the court found as a fact, that the construction and maintenance of the elevated railroad by defendants in front of the premises of plaintiff, has diminished the rental value of plaintiff’s premises, etc., etc. That the damages to the plaintiff for such diminution was the sum of $5,198. Held, onappeal, that this finding is sustained by the evidence, and that plaintiff is entitled to judgment against defendants for that sum.
    The court also found, at the request of defendant, as follows : “ Thirty-first The evidence does not establish any definite amount of damage for which any judgment can be rendered.” The defendants claimed that the latter finding is inconsistent with the former, and for that reason the judgment should be reversed. Held, that this 31st finding does not state a fact, and by section 1022 of the Code the decision of the court must state the facts found and the conclusions of law separately. As to what the evidence does or does not establish is a conclusion of law. The fact'as to the damage, and the amount of same, was found, and if the said 31st finding is of any effect at all, it is as a conclusion of law, and is clearly erroneous and cannot affect or overrule the correct conclusion of law afterwards stated, that plaintiff was entitled to judgment for the amount of damage found as a fact by the court. A judgment should not be reversed because of inconsistent conclusions of law when the judgment is in accordance with the correct conclusion of law upon the facts found.
    Before Freedman and Ingraham, JJ.
    
      Decided January 6, 1890.
    
      Appeal from judgment entered on decision of the court at special term.
    
      Davies and Rappalh, attorneys, and Samuel B. Rogers, of counsel, for appellants, argued :—
    The learned trial judge has found a fact inconsistent with any judgment for damages in the plaintiff’s favor. The finding in question is as follows: “ Thirty-first. The evidence does not establish any definite amount of damage for which any judgment can be rendered.” Notwithstanding this fact, the court has proceeded to find that, by the acts of the defendants, the plaintiff has suffered damage in the sum of $5,198, and that he is entitled to judgment against the defendants for this amount. Both the finding and the conclusion were duly excepted to. When two findings of fact are inconsistent, the appellant is entitled, in support of his exceptions to the conclusions of law, to have that taken as true which is the more favorable to himself. Bonnell v. Griswold, 89 N. Y. 122; Schwinger v. Raymond, 83 Ib. 192 ; Conselyea v. Blanchard, 103 Ib. 222, 231 ; Redfield v. Redfield, 110 Ib. 671 ; Green v: Roworth, 113 Ib. 462. This very principle has within a short time been applied by this general term in the case of Pappenheim v. Metropolitan Elevated R. Co. Its application to the present case must necessitate a reversal of the judgment for past damages. In Sedgwick on Damages, the learned author says, at p. 36 (7th Ed., p. 45) : “In all cases growing out of the non-performance of contracts, and in those of infringement of rights, or non-performance of duties created or imposed by law, in which there is no element of fraud, willful negligence, or malice, the compensation recoverable in damages consists solely of the direct pecuniary loss.” In Seventh Ward Bank v. N. Y. Elevated R. Co., 52 N. Y. Super. Ct. 412, Ingraham, J., writing the opinion of this general term, concurred in by Sedgwick, Oh. J., quotes the above words with approval, and continues as follows (pp. 416-417) : “It follows, therefore, that in an action where the recovery is limited to the damage to property, caused by the wrong complained of, and the amount of such damage does not appear, and there is no evidence from which such an amount can he ascertained, nominal damages only can be awarded. As was said in Leeds v. Metropolitan Gas Light Co., 90 N. Y. 26 : where the loss is pecuniary and is present and actual and can be shown ; but no evidence is given to show its extent, or from which it can be inferred, the jury can allow nominal damages only.’ ” We submit that, the fact being as found, the learned trial judge erred in not awarding only nominal damages.
    
      G. Willett, Van Nest, attorney and of counsel, for respondent.
   By the Court.—Ingraham, J.

The court found, as a fact, that the trespass committed by the defendants has diminished the rental value of the plaintiff’s premises from the 16th day of March, 1882, to the time of the trial, and that the damages to the plaintiff for such diminution was the sum of $5,198.

This finding is sustained by the evidence and justifies the conclusion of law that the plaintiff is entitled to judgment against the defendants for that sum. The court also found at the request of the defendant as follows: “ Thirty-first: The evidence does not establish any definite amount of damage for which any judgment can be rendered.” And it is now claimed by the appellant that this finding is inconsistent with the findings before mentioned, and for that reason the judgment should be reversed. But it is clear, that this 31st finding does not state a fact. By section 1022 of the Code, the decision of the court on a trial without a jury must state the facts found and the conclusions of law separately. As to what the evidence does or does not establish is a conclusion and not a fact. The fact as to the amount of damage was found, and if the 31st finding above cited is of any effect at all, it is as a conclusion of law, and it is clearly erroneous, it cannot affect or overrule the correct conclusion of law, that the plaintiff was entitled to a judgment for the amount of the damage that the court finds, as a fact, was sustained by the plaintiff in consequence of the trespass.

No principle requires us to reverse a judgment because of inconsistent conclusions of law when the judgment directed to be entered is in accordance with the correct conclusions of law on the facts found.

The trial judge refused to • find, as a fact, that the plaintiff’s access to the premises had not been interfered with, stating as his reason therefor: “I refuse to so find as the plaintiff will not recover for interference with access.”

We think the facts justified such a refusal, and we cannot reverse the judgment because of the reason assigned by the trial judge for the refusal to find one of the defendants’ requests, especially where he has found the facts covered by the request, and such finding, as made, is sustained by the evidence.

Nor do we think that the terms on which the defendants can acquire the interests of the plaintiff in the easement should be modified. The condition that the injunction should not be operative on the payment of the value of the easement is for the benefit of the defendants. They are not bound to avail themselves of its provisions. The interest that the plaintiff has in the easement appropriated by the defendants is the right to use such easement for the unexpired term of the lease, and the court fixed the value of such use of the easement for such unexpired term and provided for a conveyance to the defendants.

It is not certain that plaintiff will accept a renewal of the lease or will have any interest in the easement after his present term has expired. The defendants cannot complain because the court fixed the value of the easement too low, or because the court refused to compel the defendants to pay for the value of the use of the easement for a future period, but left the rights of the parties to,be settled by a new action in case it should subsequently appear that a continuance of the trespass would cause future injury to the plaintiff’s rights.

These are the only exceptions which the appellants present to us as requiring a reversal of the judgment, and we think none of them well taken.

The judgment should, therefore, be affirmed with costs.

Fbeedman, J., concurred.  