
    The Missionary Society of St. Paul the Apostle et al., Respondents, v. The New York Elevated Railroad Co. et al., Appellants.
    (New York Superior Court
    General Term,
    May, 1895.)
    Objections and exceptions to the admission of evidence as to rental or past damages in an action to restrain the operation of an elevated railroad are not available on appeal, where no past damages were awarded in the judgment.
    Benefits to other land of the plaintiff abutting on side streets, and which have no appurtenant easements of light, air and access in or over the avenue in which the railroad is located, cannot be set off against the fee damage sustained by the property claimed to have been injured.
    Appeal by defendants from judgment entered upon report of referee in favor of plaintiff.
    
      Davies, Short & Townsend, for appellants.
    
      Edwin, M. Felt, for respondent.
   McAdam, J.

The judgment appealed from restrains the defendants from the further maintenance and operation of their elevated railroad in front of the plaintiffs’ premises, unless within a certain time the defendants pay to the plaintiffs the sum of $14,700, with interest.

FTo past damages were awarded, owing to the fact that the plaintiffs’ property, for which there was a recovery, consists partly of vacant lots and partly of land covered by a church building, which is not adapted for purposes of renting, but for use as a whole. That being so, all objections and exceptions which relate to testimony taken to show rental or past damage may be considered as outside of this appeal.

The case fails to show that the referee considered noise as an element of damage in determining the fee damage.

The recovery was properly confined to the avenue lots extending from the westerly line of Ninth avenue west 100 feet, and to so much additional land as is actually covered by the church building. The defendants claim that other land of the plaintiffs in the rear of the premises in controversy, and having no easement of light, air and access in and over Ninth avenue appurtenant to it, but abutting on the side streets, was benefited by the construction, maintenance and operation of the elevated road on Ninth avenue, and .that such benefit should be set off against the fee damage awarded by the judgment appealed from, is untenable.

Upon the whole case, we think that the judgment is fairly sustained by the evidence; that substantial justice has been done, and that the record discloses no error which calls for reversal.

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., concurs.

Judgment affirmed, with costs.  