
    William Henry Willetts, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 16, 1891.)
    
    Bailboad—Elevated—Damages.
    In an action to restrain the operation of an elevated road and for damages, tlie court found the fee value before the road was built to have been §30,000, and it was shown that it was of that value at present, and that property in the vicinity not on the line of the railroad had increased ten to eighteen or twenty per cent. The court found the damage to fee value to be §8,000. Held, error; that the damage should not exceed §5,400.
    Appeal from judgment of the special term granting an injunction in default of payment of amount found due for damage to freehold.
    
      Arthur C. Townsend, for app’lts; John E. Burrill, for resp’t.
   Van Brunt, P. J.

ll the questions of law discussed upon this appeal have been so repeatedly disposed of by this court that it is unnecessary here to refer to the same.

The learned justice who tried this case, however, seems to have fallen into an error in respect to the amount of damage established by the evidence.

This error probably arose because of the multitudinous character of the findings presented and which he deemed it necessary to pass upon.

He has found that the fee value of the plaintiff’s premises in the year 1872 was $80,000, and the plaintiffs witness showed that the present value of the premises was about the same sum, and the same witness stated that the value of property in the vicinity of the premises in question but not on the line of the railway was at the present time from ten to perhaps eighteen to twenty per cent higher than it had been in 1872, and this is the outside limit shown by the evidence.

Giving the plaintiff the full benefit of this alleged rise in value, the total damage could not exceed from $5,400 to $6,000, instead of the $8,000 found by the court.

This action being in equity, and the object of the ascertainment of the amount of damage being to determine what the defendants should justly pay to relieve themselves from the operation of the injunction to which the plaintiff is legally entitled, we do not think that there should be an absolute reversal upon the question of the amount to be paid, leaving the injunction to stand, as we can determine what the proof shows in connection with the findings made by the court below to be the actual damage sustained.

Upon a consideration of all the evidence in the case, in view of the finding of value in 1872, the damage shown is the sum of $5,400. The evidence might have justified a finding of a higher value in 1872 than was found, but taking the finding as it is, we think that the sum named is a fair sum to be paid for the easements taken by the defendants.

The judgment should, therefore, be reversed and a new trial ordered, with costs to appellants to abide event, unless the plaintiff stipulates to reduce the amount of fee damage to $5,400, in which case the judgment should be so modified and, as modified, affirmed, without costs.

Barrett, J., concurs.  