
    THOMAS C. VAN BRUNT, Appellant, v. JOHN AHEARN and MARY AHEARN, Respondents.
    
      Action to remove obstructions from highway — damages recoverable in — what evidence is not admissible to mitigate them.
    
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee.
    This action was brought for the removal of obstructions to a way, and to recover damages therefor. The complaint alleged that the plaintiff was the owner of two lots of land on a street called Catharine street, in the town of Flatbush, Kings county, and had a right of way through that street to pass on foot and with vehicles at all times, and that the defendants had obstructed the street by building a house in it, and erecting a fence across it. The relief demanded is that the obstructions be removed, and the defendants restrained from further interference with the street, and the plaintiff recover damage.
    The court, at General Term, said: “ On trial of the cause the defendants were permitted to prove, over the plaintiff’s objection, that since the commencement of this action the plaintiff had sold and conveyed the portion of his lots fronting on Catharine street, to a railroad company. This testimony was, doubtless, introduced with a view to the diminution of damages ; but in no view was it relevant or proper. The rights of the parties were fixed when the action was commenced, and the damages then sustained could not be avoided by proof that after that time a portion of the premises was sold off.....
    The two lots of the plaintiff were conveyed to him as fronting on Catharine street, as laid down on a map of the premises, filed in the office of the register of Kings county, and his conveyance gave him the right to the use of the street as soon as it was made. (Bisséll v. New Fork Geni/rál R. R. Go., 23 N. Y., 6J.)
    
      Alfred B. Gruihshwnk, for the appellant.
    
      Frank Orooke, for the respondents.
   Opinion by

Dykman, J".;

Barnard, P. J., concurred ; Gilbert, J., not sitting.

Judgment reversed, and new trial granted at Special Term.  