Stirn v. Metropolitan Elevated Railway Co. , 21 N.Y. St. Rep. 71 ( 1889 )

Macomber, J.

The thirteenth, fourteenth, and seventeenth findings of fact state that the plaintiffs’ premises on Sixth avenue were injured by the acts of the defendants, in that light was partially obscured and air partially excluded therefrom, and that steam and smoke, together with grease, oil, water, and cinders fell in the vicinity of the building from passing trains. Findings 21 j- et seq. show that like damages were sustained by the plaintiffs to their property, situated on South Fifth avenue, during the same period. The learned counsel for the appellants is entirely correct in the proposition that upon an appeal from the special term, in an equity case, it is incumbent upon this court to examine into the facts, and if, upon the whole case, a different conclusion is arrived at than that of the trial judge, a reversal should follow. A somewhat attentive perusal of the case enables us to say that the damages awarded by the special term, and thd estimate made for future damages, are borne out by a clear preponderance of evidence in behalf of the plaintiffs. In so far as the same was applicable, the measure of damages in the case of Drucker v. Railway Co., 106 N. Y. 157, 12 N. E. Rep. 568, has been adopted and applied with discrimination to the facts peculiar to this case. A criticism has been made to the effect that damages appear to have been based in part upon the fact that the company maintained in front of the plaintiffs’ premises, or a portion thereof, a station for receiving and discharging passengers. There is, indeed, no station there at present, but there is nothing to prevent the defendants from erecting one there, if it should become convenient for them to do so, and we cannot say that the likelihood of such erection being made at some time in the future was not one of the elements to be taken into account by the trial court in ascertaining the future damages accompanying the use by the defendants of their railway. The judgment should be affirmed, with costs.