
    HENNEY v. BROOKLYN EL. R. CO.
    (Supreme Court, General Term, Second Department.
    February 12, 1894.)
    Action by Henney against the Brooklyn Elevated Railroad Company.
    Hoadly, Lauterbach & Johnson (Wm. N. Cohen, of counsel), for appellant.
    Stephen M. Hoye (Francis Russell Whitney, of counsel), for respondent.
   DYKMAN, J.

This is an appeal from a judgment in favor of the' plain-tifE against the defendant. The action was for the recovery of damages to property, resulting from the construction and operation of the defendant’s elevated railroad, and to restrain its operation. The trial was before a judge, without a jury, and we find no error in the record. The portion of ■the judgment which provides for an injunction would be erroneous if it was absolute, and the proceedings for the condemnation of the property had been instituted previous to the commencement of the action; but such proceedings were instituted subsequent to the commencemnt of the action, .and the restraining portion of the judgment will become inoperative, upon the payment of the sum of money awarded. Under such circumstances, we •see no reason for a reversal of the judgment The judgment should be affirmed, with costs.  