
    Cornelius F. Kingsland, Resp’t, v. Kings County Elevated Railroad Company, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1894.)
    
    1. Appeal—Conflicting evidence.
    A verdict, on conflicting evidence, will not be disturbed on appeal, unless clearly against the weight of evidence.
    2. Damages—Elevated railway—Equity.
    In an action against an elevated railway for an injunction and damages, the grantee cannot, recover the damages which accrued before the conveyance to him, though they were assigned to him by his grantor.
    Appeal from a judgment in favor of plaintiff.
    
      Russell, Poste & Perry ( W. A. Poste, of counsel), for app’lt; T. B. Gates, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the special term in favor of the plaintiff. The action, save in one particular, is the usual one by an abutter for injury to the fee and for past damages. The most earnest contention of the appellant is that the trial court erred in the question of fact as to the amount of damages both to the fee and to the rental value. It does seem to us as if the evidence of the witnesses to the depreciation in the value of the property was more speculative than based on actual facts. But, to justify us in reversing the judgment below on this ground, it is not sufficient that we might have arrived at a different conclusion. The proof must so clearly preponderate that it can be said with a reasonable degree of certainty that the trial court erred in its conclusion. Aldridge v. Aldridge, 120 N. Y. 614;. 31 St. Rep. 938; Barnard v. Gantz, 140 N. Y. 249; 55 St. Rep. 541. We do not think the evidence so clear as to justify us in such a finding.

The appellant put in evidence a consent to the construction of the road, executed by one Henry Mangles. We assume from the record before us, though the will is not set out in it, that the title to the property at the time was in Anna Mangles and Claus D. Doscher, as trustees under the will of Henry Mangles, deceased. Assuming that authority from Anna Mangles for the execution of the consent was proved, still the consent was inoperative, as the other trustee did not join in it. Besides this, the consent provided that its execution should not otherwise affect the abutter’s claim to damages, but the right to and the extent of compensation should be left entirely unaffected, to be dealt with according to law. This condition, we think, reserved to the owners the right to-equitable remedies to enforce compensation as well as the right to remedies at law.

The plaintiff was allowed $250 as damages to the rental value while the property was owned by his predecessor in title, the right to which was assigned to him by a special provision in his deed. Equity takes cognizance of the subject of past damages only as incident to the administration of equitable relief for injury to the fee. The damage was severed from the property by its conveyance. Tkese damages, unless assigned, would have been retained, by the plaintiff’s grantor, who could bring only an action at law for their recovery. The fact that they have been assigned to one who has an equitable cause of action does not give equity jurisdiction over them. Sommers v. N. Y. El. R. R. Co., 60 Hun, 148; 38 St. Rep. 419; Siefke v. Man. Railway Co., 39 St. Rep. 355.

The j udgment appealed from should be reversed, unless plaintiff consents to reduce the same by $250 and interest, in which case the judgment as modified is affirmed, without costs to either party.

All concur.  