
    William Y. Mortimer et al., Ex’rs, v. The Metropolitan Elevated Railway Co. et al., App’lts. William Y. Mortimer et al., Ex’rs, Resp’ts, v. The New York Elevated Railway Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. Railroad—Elevated—Damages.
    In an action against an elevated railroad damages up to the time of the-trial may he recovered.
    3. Same—Leased premises.
    The owner of the ¡premises may recover in such- action for injuries in-. dieted during the period when they were leased.
    Appeals by the defendants from judgments rendered at the' special term in favor of plaintiffs.
    
      Davies, Short & Townsend and Edward B. Thomas, for app’lts ;. John IF. Pirsson, John E. Parsons and J. Alex. Beall, for resp’ts.
   Lawrence, J.

The learned justice who tried this case at special term found that the construction and operation of the defendants’ railways in front of the plaintiffs’ premises, both in the Bowery and Division street, have most seriously impaired the easements of light and air, appurtenant to those premises. In this conclusion as matter of fact, after examining the evidence, we entirely concur. It is said, however, that the justice erred in fixing both the past damages and the compensation to be paid by the defendants.

Our review of the evidence convinces us that no such error was committed. See opinion of Patterson, J., at pp. 60 and 61, case.

The evidence which was before the trial court was carefully considered, and we see no reason for disturbing the judgment which was reached.

It does not appear that any error was committed in reference to determining the damages to which the plaintiffs were entitled, and the case of Cornell v. The Manhattan Railway Co., 37 St. Rep., 624, when examined, does not sustain the appellants’ contention. In that case it was not decided that a plaintiff in an action of this character was not entitled to recover damages up to the time of the trial. There were two inconsistent findings of fact in the case, and as under one of those findings it appeared that damages had been or could have been awarded for a period of more than six years from the commencement of the action, and as the court were of the opinion that the damages were incapable of division or reduction, the judgment in the plaintiff’s favor was reversed and a new trial ordered. Ho such question is presented in this case.

The damages here allowed for rental value are for the depreciation between July 28, 1887, and August, 1890, a period of about three years.

A further point is made that the court below erred in refusing to consider the benefits that had accrued from the construction of the railways, but we find no error in that respect The court-found, as matter of fact, that there were no such benefits proven, and therefore refused to find the finding in that respect which was tendered by the defendants, and by that refusal necessarily passed upon that question. The point that the plaintiffs are riot entitled to recover damages for injuries inflicted during the period embraced in the lease, has already been passed upon adversely to the appellants in the case of Hine v. New York Elevated R. R. Co., 37 St. Rep., 606.

We are therefore of the opinion that each of the cases was properly decided by the special term, and that the judgments there rendered should be affirmed, with costs and disbursements.

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