
    Augusta L. Jones, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 4, 1892.)
    
    Eailroad—Elevated—Damages.
    In determining the sum representing the depreciation of the premises in fee value to be paid as an alternative for avoiding an injunction, it is proper to consider the effect upon the premises, as regards the diminution of light and air, resulting from the continued operation of the elevated railroad in the future.
    Action to restrain defendants from' maintaining their elevated Tailway in front of plaintiff’s premises and for past damages.
    
      Charles Qibson Bennett, for resp’t; Julien T. Davies and John C. Thomson, for app’lts.
   Bischoff, J.

Two grounds only are assigned for reversal of judgment, viz.: That the referee erred in his conclusion that the diminution of light and air caused by passing trains on defendants’ elevated railroad structure in front of plaintiff’s premises constituted a taking of the easements of light and air appurtenant thereto, and that in determining the sum representing the depreciation of the premises in fee value and to be paid as an alternative for avoiding the injunction, the referee erroneously included the effect upon the premises, as regards the diminution of light and air, resulting from the continued operation of the railroad in the future.

Both questions were determined adversely to the appellant in Smith v. New York Elevated R. R. Co. et al, 44 St. Rep., 875, decided by the general term of this court in March last, and the present does not appear to be distinguishable from that case. The judgment should, therefore, be affirmed, with costs.

Judgment affirmed, with costs.

Bookstaver and Pryor, JJ., concur.  