
    Emma L. Jacquelin et al., Respondents, v. The Manhattan Railway Co. et al., Appellants. Sarah E. Youmans et al., Respondents, v. The Manhattan Railway Co. et al., Appellants.
    (New York Superior Court
    General Term,
    May, 1895.)
    The court has no power to direct a reference as to the question of past damages in an action against an elevated railroad for injunctive relief and damages.
    
      Such reference is not authorized hy an interlocutory order reserving the question of damages to he determined “in such manner as the court should then direct,” as such provision of the order assumes the exercise hy the court of its lawful powers.
    Appeal from orders made at Special Term.
    
      Da/oies, Short & Townsend, for appellants.
    
      Forster d¿¡ Speir, for respondents.
   McAdam, J.

These are equity suits by abutting owners for injunctive relief, fee and past damages on account of the operation of the defendants’ elevated railway.

When the causes were called for trial in October, 1893, the defendants admitted that substantial damages had been sustained by the plaintiffs; whereupon the court directed interlocutory judgment that the defendants be enjoined, unless within six months they caused the easements appurtenant to the plaintiffs’ premises to be condemned and acquired according to law. The court further directed that the question of past damages be reserved for determination after the easements should have been acquired, in such manner as the court should then direct.

Condemnation proceedings were instituted and prosecuted to awards, which the defendants paid.

In October, 1894, plaintiffs moved to restore the causes to the equity calendar for trial as to past damages. The judge presiding at Special Term thereupon directed a reference, upon the ground that as the interlocutory judgment entered upon consent provided “ that the past damages be determined in such manner as the court should direct,” it carried with it the right to refer that question to a referee. We think this view erroneous. The words “in such manner as the court may direct ” assume the exercise of its lawful powers, and cannot be interpreted irrespective of the limitations imposed hy law. Express authority must, therefore, be found for the reference or its direction cannot be sustained.

The admission that substantial damages had been sustained is equivalent to a finding to that effect after proof of title — nothing more. The Code contains no warrant for the appointment of a referee to complete the trial. Doyle v. R. R. Co., 136 N. Y. 505.

It follows that the orders appealed from must he reversed, with costs.

Sedgwick, Ch. J., and Fkeedman, J., concur.

Orders reversed, with costs.  