
    Elias Sobel et al., Resp’ts, v. The New Yore Elevated R. R. Co. and The Manhattan R. Co., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 28, 1890.)
    
    Bailboads—Elevated—Pleading—Election.
    A complaint in an action to restrain the operation of an elevated railroad and for damages which alleges that plaintiffs were owners of the fee of the street, and thus entitled to light, air and access to their premises, and also that they were similarly entitled by reason of an easement, does not involve inconsistent claims, and it is not error to refuse to require plaintiffs to elect between the two claims.
    Appeal from a judgment rendered after a trial at special term by the court without a jury.
    Action to restrain the operation of defendants’ railroad in front of plaintiffs’ premises and for damages. The judgment awarded to plaintiff $4,919.66 damages and costs, and contained an injunction restraining the defendants from the further maintenance and operation of their elevated railway in front of the premises Ho. 160 Greenwich street, unless within ninety days from the •date thereof they pay to the plaintiffs the sum of $9,000.
    
      Edward S. Rapadlo and Brainard Tolies, for app’lts ; W. G. Beck-ham, for resp’ts.
   Barrett, J.

This case is covered by the opinion written in the Eochhalier case, ante, p. 112. The only other point raised here is that the court erred in refusing to compel the plaintiffs to elect between a claim as owners of the fee of the street and a claim as possessors of mere easements therein. This was properly refused for two reasons:

First. Because the complaint makes but one claim, namely, that of ownership in fee subject to the public easement. It is true that the plaintiffs say that they thus acquired freedom of access to their premises and the benefit of light and air. But that does not involve two inconsistent claims. If what they say is true, they did acquire these rights, and more.

Second. Because the claim here is for compensation for, to use the presiding justice’s happy expression in the Ode case, ante, p. 106, that “ aggregation of discomforts” suffered by the plaintiffs, .as abutting owners, in consequence of what the courts have said was not an ordinary street use. The extent of this compensation was precisely the same, however the plaintiffs’ rights with respect to the street might be viewed. There was nothing inconsistent,' therefore, between a statement that the plaintiffs were entitled to light, air and access, with reference to their premises, by reason of ownership in fee and a statement, even if made, that they were similarly entitled by reason of an easement

The case made was a deprivation of light, air and access to which the plaintiffs were entitled. The right thereto was established by the evidence and found by the court. Having further proved the partial deprivation of this right and damages resulting therefrom, the plaintiffs were entitled to the relief accorded to-them.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Bartlett, J., concur.  