
    Max Ottinger et al., Resp’ts, v. New York Elevated Ry. Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 12, 1891.)
    
    1. Damages—Excessive interest.
    Upon the trial of an action for damages caused by -the erection of an elevated railroad in front of plaintiffs’ premises, damages were awarded to plaintiff by the court at $500 per year for six years, but it entered judgment for $3,450, of which $450 was interest. Held, that the judgment must be modified by deducting $270 interest.
    2. Elevated railroad.
    Plaintiff began his action May 24, 1888, to recover damages for injury to the rental value of his premises through the erection of defendant’s railroad. It was tried in December, 1890, and the building had been rented for two years from May 1, 1890. Held, that the injuries to the reversion were being actually suffered; the defendants were using the property of plaintiffs without payment, and were liable for the trespass.
    Appeal from judgment entered after trial at special term, enjoining the'defendants from maintaining their elevated railway in front of plaintiff’s premises unless they paid the plaintiff a certain sum, and for damages claimed by the defendant’s trespass prior to the commencement of the action.
    
      Samuel B. Rogers, for app’lts; W. G. Peckham, for resp’ts.
   Van Brunt, P. J.

—It is claimed by the appellants that the amount awarded as past damages and permanent damages is excessive, and not warranted by the evidence.

An examination of the evidence in the case does not show that the defendants have been unjustly treated by the allowances whic vive been made in respect to the amount of damages to t_ ,-ntal or the permanent damages which have been allowed. In fact, such allowance seems to have been reasonable, and there is no ground of complaint.

The learned judge, however, seems to have fallen into an error in respect to the allowance of interest. Five hundred dollars a year as damages for loss of rental was allowed, and interest thereon; and the whole sum allowed, with interest, was $3,450, of which $450 appears to have been for interest The annual legal interest would have been $30, making for the six years $180; and the excess seems to have been unauthorized; and the judgment for' past damages must be reduced by the sum of $270.

It is also urged that the plaintiffs having purchased this property at a reduced price, they have therefore no cause of action. This-question has been too frequently passed upon to need further discussion or elaboration here.

It appeared from the evidence which was introduced that the-premises had been occupied by tenants during all the period covered by this litigation. This action was commenced on the 24th of May, 1888. It appears to have been tried in December, 1890, and that the building had been rented at the time of the-trial for two years from the 1st of May, 1890; and it is urged because of such lease the learned judge erred in granting an injunction which should be operative prior to the expiration of that, lease and that although the plaintiffs can have an injunction to protect the inheritance, viz.: their revisionary estate, it having been held by the court of appeals that these structures are not necessarily to be deemed permanent and as they may be removed before the lease in question, no injunction should have been granted.

Whatever might have been the rights of the defendants in this regard had this action been commenced during the continuance of a leasehold term which had not expired at the time of the trial, no such question can arise in the case at bar.

This action was commenced in 1888, and the lease in question was made in 1890. The injuries to the reversion were being actually suffered; the defendants were using the property of the' plaintiffs .for which they refused to pay and are using it to this; day; and having seized on this property of the plaintiffs to the1 possession of which they were entitled, they cannot be allowed' to continue their trespass without making compensation.

The principles enunciated in the case of Hine v. N. Y. Elev. R. Co., seem to dispose of these questions even if they were not sufficiently disposed of by the case of Macy v. N. Y. Elev., 36 N. Y. State Rep., 245, in which case a provision authorizing actions of this kind is expressly referred to.

It is claimed that that case was decided upon another ground.

But upon what theory it can be claimed that the one or the other ground was considered decisive in the action we are unable to see.

The judgment should be modified by reducing the amount allowed for pást damages from $3,450 to $3,160, and as so modified affirmed, without costs.

Daniels, J., concurs.  