
    Thomas I. Storm and Others, as Trustees of School District No. 5 of the Town of East Fishkill, Respondents, v. New York and New England Railroad Company, Appellant.
    
      Eminent domain■ — equity action to restrain a railroad company from, maintaining’, its tracks on plaintiff’s land —findings as to the difference in mine of land with^ and without the raib'oad — judgment for da/mages modified.
    
    The answer in an action, brought in equity against a railroad company to restrain it from using its tracks laid across land claimed to be owned by the plaintiffs, to compel the removal of the same and to recover damages for the trespass, prayed that, in case the complaint was not dismissed, the court would fix the amount which the plaintiffs were entitled to recover for past and future damages, and that on the payment thereof the plaintiffs should be decreed to deed to the defendant the land occupied by it — the subject of the action.
    
      JBeld, that a finding by the court, that the difference in the value of the land, with and without the railroad, was a certain amount, was within the issue formed by the pleadings ;
    That a judgment rendered in such action, in favor of the plaintiffs for that amount, with a provision that if that amount was not paid the plaintiffs might bring an action of ejectment against the defendant for the recovery of the land, would, upon an appeal therefrom, be modified by tlie General Term so as to provide that upon payment of the damages within thirty days after service of a copy of the judgment, the plaintiffs should convey to the defendant the land occupied bjr it by deed to be approved by a justice of this court, and that in case the damages were not paid in that time the plaintiffs should have leave to maintain an action of ejectment to recover the land.
    Appeal by tbe defendant, tlie New York and New England Railroad Company, from a judgment of tbe Supreme Court in favor of the plaintiffs, entered in the office of tbe clerk of tbe county of Dutchess on the 29th day of December, 1893, upon the decision of the court rendered after a trial at the Dutchess Special Term.
    The judgment in this case directed that the plaintiffs recover from the defendant the sum of $1,500 damages, besides the sum of $215.35 costs as taxed, making in all the sum of $1,715.35.
    . It was further ordered and adjudged tliat if this judgment was not paid by the defendant, that the said school district or the trustees of said School District No. 5 of the town of East Fishkill were authorized and empowered to bring and maintain an action of ejectment against the defendant for the land unlawfully taken and occupied by tbe defendant for its tracks and for tbe purposes of its railroad.
    
      Walter O. Anthony, for tbe appellant.
    
      Haekett (& Williams, for tbe respondents.
   BeowN, P. J.:

Tbis action was brought in equity to restrain tbe appellant from using its tracks across land claimed to be owned by the plaintiffs, and to compel tbe removal of tbe same, and to recover damages for tbe trespass.

In its answer tbe defendant prayed that, in case tbe complaint was not dismissed, the court would fix tbe amount which plaintiffs were entitled to recover for past and future damages, and direct that on payment thereof the plaintiffs be decreed to deed to defendant tbe lands occupied by it, and which were tbe subject of tbe action.

Tbe case was brought‘to trial at Special Term, and tbe court found that tbe difference in tbe value of the land, with and without tbe railroad, was $1,500, and it awarded plaintiffs judgment for that sum and costs, and provided that, if it was not paid, tbe plaintiffs might bring an action of ejectment against defendant for the land.

Tbe appellant does not now dispute tbe plaintiffs’ title or claim that tbe damages are - excessive. Its claim is, that tbe court should have assessed the damages as for a trespass solely, and that tbe award of tbe value of tbe land taken was erroneous. The facts decided by tbe court were within tbe issue made by tbe pleadings, and if tbe proper judgment bad been rendered tbe appellant would have no cause for complaint. Tbe court has power, upon tbis appeal,, to modify tbe judgment and conform it to tbe facts proven, and this should now be done. Tbe judgment should be modified so as to provide that, upon payment of tbe damages within thirty days after service of a copy of tbe judgment, plaintiffs convey to tbe defendant by deed, to be approved as to form by a justice of the court, tbe land occupied by it, and that in case tbe damages are not paid within the time aforesaid, that plaintiffs have leave to maintain an action in ejectment to recover tbe land, and, as so modified, the judgment should be affirmed, without costs of appeal.

DyKMAN and CulleN, JJ., concurred.

Judgment modified so as to provide that, upon payment of the damages within thirty days after service of a copy of the judgment, plaintiffs convey to defendant the land occupied by it by deed, to be approved by a justice of this court, and in case the damages are not paid within thirty days, plaintiffs have leave to bring an action of ejectment. So modified, the judgment is affirmed, without costs.  