
    Elizabeth B. Sanders, individually and as Ex’rx, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 2, 1890.)
    
    1. Railroads—Trial—Jury.
    An action to restrain the operation of an elevated' railroad and for damages is an action in equity for an injunction in which the question of damages is merely incidental and alternative, and the defendant is not entitled to a jury trial as to the claim for damages
    2. Same—Findings.
    The fact that the court found certain facts as to which there was no evidence is not reversible error where such finding was not an independent one, but was included in a finding as to other facts as to which there was evidence, and it is apparent that such error could have no effect on the result.
    
      {PappenTieimv. Metropolitan B. B. Oo., 28 FT. Y. State Rep., 577, distinguished.)
    3. Same—Appeal.
    The appellate court will not presume, for the sake of reversing a judgment apparently just on the merits, that the judge, in order to enhance the damages, took into consideration elements not proved before him or mentioned or referred to on the trial.
    Appeal from judgment entered on the 8th day of January, 1890, in favor of plaintiff.
    The judgment awards to the plaintiff the sum of $1,034.43 damages and costs, and contains an injunction restraining the -defendants from the continued maintenance and operation of their elevated railroad in front of the premises No. 41 Third avenue, unless within a time fixed by the judgment, they pay to the plaintiff the sum of $1,000. Defendants claim, (1) that there was a misjoinder of causes of action produced by the order reviving the action after the death of Charles W. Sanders; (2) that they were entitled to a jury trial of the cause of action for past damages belonging to the estate of Charles W. Sanders, and (3) that the court erred in finding that grease, oil and water were allowed to drop from passing trains and fall on Third avenue in front of said premises.
    
      Brainard Tolies and Alexander S. Lyman, for app’lts; Henry G. Atwater, for resp’t.
   Larremore, Oh. J.

Our former decision in this action affirming the order of revivor, 7 N. Y. Supplt., 641; 27 N. Y. State Rep., 795, expressly disposes of the first point raised upon this appeal. We think also that necessary inferences to be drawn from such decision must overrule appellants’ second point. They contend that they should have been granted a jury trial as to the claim for past damages for loss of rentals before the testator’s death. Our decision was that this action, which was pending ah the time of Mr. Sanders’ death, was and is an action in equity for an injunction, in which the question of damages is merely incidental and alternative. It was revived in its entirety as an equitable action, and must be preserved in its integrity as an equitable action.

There remains the point that the learned trial judge included in one of his findings of fact a statement that grease, oil and water were allowed to drop from passing trains and fall on Third avenue in front of said premises. There is no evidence to support such conclusion, and we cannot look upon it as anything but an inadvertence. It does not constitute an independent finding, but is included in the one referring to smoke, steam, gas and cinders, as to all of which there is a great deal of proof. This is not an instance of basing a judgment upon insufficient evidence, or no evidence at all. Here, in addition to the evidence upon the issues that have been tried, appears what purports to be a finding upon an issue which had not been tried. It is obvious that the judgment was intended to rest upon the findings on the issues actually discussed at the trial. The trial judge might have entertained a motion to amend his findings in that respect. It is evident, upon inspection of the whole case, that this apparent error could not have had any influence on the result. We will not presume, for the sake of reversing a judgment apparently just on the merits, that the judge, in order to enhance the damages, took into consideration elements not proved before him, and not even mentioned or referred to during the hearing. We think, under the circumstances, the obnoxious clause may be disregarded as surplusage and treated as if actually expunged.

We do not regard the case of Pappenheim v. The Metropolitan Elevated Railroad Co., 28 N. Y. State Rep., 577, as controlling. There the inadvertent finding was utterly irreconcilable with and antagonistic to the judgment, and was, moreover, made as a separate and distinct finding. That decision was put upon the ground that where two findings of fact are inconsistent, the appellant is entitled in support of his exceptions to have that taken as true which is the more favorable to himself. The case at bar is distinguishable from the case cited.

The judgment appealed from should be affirmed, with costs.

Bookstaver, J., concurs.  