Wendel v. New York Elevated Railroad , 71 N.Y. St. Rep. 873 ( 1896 )

INGRAHAM, J.

The property owned by the plain tills in this action is situated upon the southeast corner of Third avenue and Fifty-fourth street, and has a frontage on the avenue of twenty-five feet five inches and a depth of twenty-seven feet. Upon the lot there is a five-story brick.building sixty feet in depth, with a one-story extension of about seventeen feet. The court awarded an injunction restraining the further maintenance, operation and use of the elevated structure in Third avenue unless the defendants should pay to the plaintiffs $3,000 as the injury to the fee value, and gave judgment to the plaintiffs as damages for the maintenance and operation of tho road for $180 per year. The only complaint of the defendants in this action is that the amount awarded for fee damage and rental damage is too large. Upon each of the floors of the building above the store there are eight rooms, with the exception of the second floor, which has seven rooms. The second story has lately been altered, and is let at present for business purposes. The third, fourth and fifth floors are divided into apartments having fonr rooms. There is no station at the corner of this street, and the structure of the defendants in the street is about twenty-six feet from the house line. We do not think there is any evidence to justify a finding that the construction of the defendants’ road in the street has caused any injury to the store, and a consideration of the evidence has satisfied us that the injury to the remaining portion of the premises does not exceed $125 a year. The judgment’shouid he modified by reducing the amount that the defendants are required to tender to the piaiatiffs from the sum of $3,000 to $3,000, and the amount for which the plaintiffs are entitled to judgment for damage to the rental, value should he reduced "from $180 a year to $125, and the allowance reduced to $100; and the judgment as thus modified is affirmed, without costs to either party. All concur.