
    Bernhard Stirn and Another, Resp’ts, v. The Metropolitan Elevated Railway Company and the Manhattan Railway Company, App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    1. Equity—Appeal.
    On an appeal from the special term in an equity case it is incumbent upon this court to examine into the facts, and if upon the whole case a different conclusion is arrived at, a reversal should follow.
    3. Elevated railroads—Damages—Measure of.
    In an action against an elevated railroad for damages for injury to property of abutting owners, it is proper in so far as the same is applicable, t© adopt the measure of damages adopted in the case of Drueker v. Manhattan Bailway Co. (8 1ST. Y. State Rep., 599).
    8. Same—Station for receiving and discharging passengers.
    Although, at the time of the suit, there was no station in front of plaintiffs’ premises, there is nothing to prevent the company from erecting one there if it should become convenient for them to do so. and the likelihood of such erection being made at some time in the future, is one of the element to be taken into account in ascertaining the future damages, accompanying the use by the defendants of their railway.
    
      Appear from a judgment of the special term, awarding damages to.the plaintiff in the amount of $8,281.66, being the amount of such damages down to the date of the trial of the action, and restraining and enjoining the operation by the defendants of their railroad in front of the plaintiffs premises situated on the southwest corner of South Fifth avenue and Broome street, and at No. 877 Sixth avenue, unless within a period of thirty days, the defendants cause said easement appurtenant to said premises to be taken and paid for or to be acquired. But that in case of a tender to the plaintiffs within thirty days from the date of the judgment, of the sum of $13,500, the plaintiffs were required to deliver up to the defendants a conveyance and release of all future damages by reason of the acts of the defendants.
    
      W. Gr. Peckham, for resp’ts; Julien T. Davies, for app’lts.
   Macomber, J.

The thirteenth, fourteenth and seventeenth findings of fact state that the plaintiffs’ premises on Sixth avenue were injured by the acts of the defendants, in that light was partially obscured and air partially excluded therefrom, and that steam and smoke, together with grease, oil, water and cinders, fell in the vicinity of the building from passing trains. Findings twenty-one and one-half et seq. show that like damages were sustained by the plaintiffs to their property, situated on South Fifth avenue, during the same period.

The learned counsel for the appellant is entirely correct in the proposition that upon an appeal from the special term, in an equity case, it is incumbent upon this court to examine into the facts and if, upon the whole case, a different conclusion is arrived at than that of the trial judge, a reversal should follow. A somewhat attentive perusal of the case enables us to say that the damages awarded by the special term, and the estimate made for future damages, are borne out by a clear preponderance of evidence in behalf of the plaintiffs.

In so far as the same was applicable, the measure of damages in the case of Drucker v Manhattan Railway Co. (106 N. Y., 157; 8 N. Y. State Rep., 599) has been adopted and applied with discrimination to the facts peculiar to this case.

A criticism has been made to the effect that damages appear to have been based, in part, upon the fact that the company maintained in front of the plaintiffs’ premises, or a portion thereof, a station for receiving and discharging passengers. There is, indeed, no station there at present, but there is nothing to prevent the defendants from erecting one there if it should become convenient for them to do so, and we cannot say that the likelihood of such erection being made at some time in the future was not one of the elements to be taken into account by the trial court in ascertaining the future damages, accompanying the use by the defendants of their railway.

The judgment should be affirmed, with costs.

Van Brunt, Ch. J., and Brady, J., concur.  