
    August M. Kiep, Resp't, v. The Manhattan Railway Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    1. Railroad—Elevated—Noise.
    Although an elevated railroad is liable in an action at law for the wrong done abutting owners by the noise of passing trains, such noise cannot be taken into account as an element of fee damage in an equitable action to restrain its operation.
    3. Same—Findings.
    The mere use by the referee of the words “ permanent maintenance and operation of such road ” in a finding as to fee value does not necessarily include such incidental damages from the use and operation of the road as noise, smoke and cinders.
    Appeal from judgment of the special term, entered upon the decision of referees appointed pursuant to a stipulation made by the parties.
    Action to restrain the maintenance and operation of defendants’ railroad in front of plaintiff’s premises, and for damages.
    
      The referees refused to find the sixteenth request of defendants, as follows: “ The sum fixed which the defendants must pay in order to obviate the injunction herein should not be greater than the sum necessary to compensate plaintiff for the perpetual maintenance of defendants’ elevated railroad structure, and exclusive of the damages caused, or to be caused, by the running of trains thereon,” and found as follows: “ Twelfth, The defendants intend to permanently maintain and operate the said elevated railroad as now constructed, maintained and operated by them.” “ Fourteenth, The value of the interests and easeménts of the plaintiff in said avenue appurtenant to the premises above described, taken, appropriated and used by defendants in the construction, maintenance and operation of said elevated railroad, and the impairment of the fee value of the plaintiff’s said property in consequence of such taking, appropriation and use, as upon a permanent maintenance and operation of said railroad, as the same was maintained and operated on December 22, 1890, was on said day the sum of $1,200, over and above any benefits resulting to said premises from the construction, maintenance or operation of said railroad and peculiar to said premises.”
    
      Julien T. Davies and Joseph N. Lord, for app’lts; Henry M At-water, for resp’t.
   Lawrence, J.

On the argument of this appeal the appellants’ counsel waived the objection that error had been committed by the referees in awarding damages on account of injuries inflicted upon the premises in suit for a period of time subsequent to the commencement of the. action, and he rested his appeal solely upon the ground that it was error on the part of the referees to grant an injunction against the futui-e running of trains, and to include damages for any injuries incidental thereto in fixing the sum to be paid as the value of the easement. It is now perfectly well settled that' although an elevated railroad is liable, in an action at law, for the wrong done abutting owners by the noise of passing trains, such noise should not be taken into account as an element of fee damage in actions of this nature. American Bank Note Company v. The N. Y. Elevated R. R. Co., 41 St. Rep., 531.

We fail, however, to discover from the admission of the evidence in this case as to noise, smoke and cinders, that the referees in estimating the amount which the plaintiff should receive as damage to the fee included such damages as arose from the incidental use and operation of the road. The exceptions upon which the appellants rely are based upon the refusal to find the sixteenth proposed conclusion of law of the defendants, taken in connection with the twelfth and fourteenth findings of the referees. Those findings in our opinion do not show that the referees allowed as a part of the damage to the fee value of the plaintiff’s property the injuries incidental to the running of trains. The use of the words, “ permanent maintenance and operation of such road,” do not necessarily include such incidental damages, and it seems to us hypercritical to say that the referees by their findings and their refusal to find, have indicated that such damages were included in the conclusion which they reached, or in the judgment entered thereon.

There is no other question in the case, and we are of opinion, therefore, that the judgment rendered below should be affirmed, with costs and disbursements to the respondent.

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