
    _ Sophia W. Adams, Respondent, v. The Manhattan Railway Co., Appellant.
    (New York Superior Court—General Term,
    December, 1895)
    Railroads—Elevated — Rental damages accruing subsequent to ACQUIREMENT OF 'EASEMENTS BY THE RAILROAD CANNOT BE ALLOWED.
    Where substantial damage , to. an-.abutting owner-is admitted, and his easements are acquired by tlie railroad company by condemnation proceedings p'ending an action for injunctiye. relief . and damages, rental damages subsequent to the time the railroad became the owner of such easements cannot be allowed.
    Appeal from a judgment of the Equity Term.
    
      Cannon & Atwater (H. G. Atwater and A. B. Cruikshank, of counsel), for respondent.
    
      Davies, Short & Townsend (Julien T. Davies and J. C. Bushby, of counsel), for appellant.
   Gildersleeve, J.

This action' was brought to, obtain an injunction against the further maintenance and operation of defendant’s elevated- railroad, and also to recover past damages to rental values suffered by the plaintiff by reason of the defendant’s acts. When the action came on for trial in October, 1893, the defendant admitted an estate in the plaintiff in the premises in question, and that plaintiff had suffered substantial damage. The .usual injunction was thereupon granted unless defendant condemned, the property, within nine months.. The question of the amount, of rental damage was reserved until further order. Defendant instituted condemnation.pro-' ceedings, and the reporfof the commissioners awarding plain-. tiff $1,200 was filed July 28, 1894,. confirmed November 17, 1894, and, on December 20, 1894, said award was paid, and defendant thereupon became the owner of the plaintiff’s easements' in question. It is claimed by the appellant that the award, upon confirmation, became a liquidated debt, and that payment of the same on December 20, 1894,. related back to November 17, 1894, the date of the confirmation, and that, hence, plaintiff was not entitled to rental damage subsequent to November 17, 1894. There seems to be some authority for this contention, but we shall not now undertake to decide the. point, inasmuch as the conclusion- that we have reached as to the effect- of an undisputed claim-in .the case renders it unnecessary,

The action was commenced April 15, 1891, and was tried on January 17, 1895. The only.issue in the case tried by the court below was-as to the rental damage alleged to have been sustained by the plaintiff. The court awarded the plaintiff $2,545 for rental damages from April 15,1885, six yearS prior to the commencement of the action, to January 17, 1895, the time of tiie trial. From the judgment entered upon that; decision this appeal was taken. . It needs no support of authorities to sustain the assertion that the plaintiff’s right to • rental damage ceased upon defendant’s becoming owner of the, easements. It is perfectly clear that not later than December 20, 1894, the easements in question became the property of the defendant. The finding of fact by the learned trial judge, ' upon which the judgment is based, is as follows: (No. 12) “ By the" maintenance and operation of said railroad from April -15th, 1885, to January 17th, 1895, the rental value of said premises has been damaged, with interest awarded, because it is necessary for plaintiff’s compensation, in the sum of $2,545.00, and the plaintiff has suffered damages in that amount through such acts of defendant.”

It, therefore, appears that-the court awarded rental damages . subsequent to the acquisition by defendant of plaintiff’s easements, forythe period from December 20,18,94, to January 17, ' 1895. ’ Could we ascertain from the findings that the learned . trial judge fixed the .damage to the rental- value for the month of December, 1894, and the month of January, 1895, at a specific sum for each of said months, we- might answer the challenge to the judgment upon the.ground we are now considering by deducting therefrom the fro rata amount for the period subsequent to the acquisition by defendant of plaintiff’s easements, and, as .thus modified, affirm the judgment. But we have no such guide upon which to base a calculation. We consider the rule laid down in Martin v. Manhattan Ry. Co., 63 Hun, 350, fully supported both by reason and authority, and as applicable to this case.

The award for damages subsequent to the'time that defendant became owner of the easements was error that requires a reversal of the judgment. Having reached this conclusion, it is unnecessary to discuss other points raised by the appellant.

Judgment appealed from should be-reversed anda new trial ordered, with costs to appellant to abide the event.

Freedman and Me Adam, JJ., concur.

Judgment reversed and new trial ordered, with costs to-appellant to abide event.  