
    HULL v. NEW YORK EL. R. CO. et al. (two cases).
    (Supreme Court, General Term, First Department.
    May 18, 1894.)
    Elevated Rau/roads— Damages to Abutters—Release or Mortgage.
    Payment of a judgment against an elevated railroad for fee damages to abutting premises will be conditioned on the release of a mortgage on such premises.
    Appeal from special term, New York county.
    Two actions by John Henry Hull against the New York Elevated Railroad Company and another for an injunction, and to recover damages to plaintiff’s houses and lots known as “Nos. 244 .and 246 East Thirty-Fourth Street.” From a judgment awarding an injunction unless defendants pay $3,000 as fee damages, and $1,500 rental damages, to each of the houses, defendants appeal. Judgment in action No. 1 modified, and judgment in action No. 2 affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    J. C. Thomson, for appellant.
    J. H. Hull, in pro. per.
   PER CURIAM.

The main question involved in this case is a •question of fact,—as to whether the award was justified by the •evidence. We are of opinion that it was, and do not think it necessary to rehearse the evidence, but merely give our conclusion, as derived from the argument and examination of the case. It is, however, claimed that one of the mortgagees was not required by the decree to release the mortgage in respect to the piece of property described in the action which is called “No. 1.” It is urged upon the part of the respondent that such release is not necessary, as the mortgage in question has become merged. We do not think, in view of the condition of this record, that the defendants should be required to depend upon such merger, but that the decree in action No. 1 should be modified by requiring a release from the mortgage as a condition of payment, and, as modified, affirmed, without costs. In action No. 2 no such question exists, and the judgment should be affirmed, with costs.  