Opinion
April Term, 1901.
Judgment affirmed, without costs.
This action was brought to recover damages resulting from the operation of defendants' railroad in front of plaintiff's premises on Park avenue, in the city of New York, and to enjoin the future operation of such road. The plaintiff had a judgment restraining the defendants from interfering with his easements of light, air and access to the premises in question and fixing the amount of the fee and rental damages because of such prior interference. The judgment was in the usual form in actions brought for a similar purpose against the elevated railroad companies in such city and provided that if the defendants within a time specified, paid the amounts awarded for fee and rental damages, that then the injunction should not become operative. The facts established upon the trial, so far as the same relate to the plaintiff's right to recover at all, are substantially the same as those established upon the trials in Lewis v. New York Harlem R.R. Co. ( 162 N.Y. 202); Fries v. New York Harlem R.R. Co. ( 57 App. Div. 577), and Sander v. New York Harlem R.R. Co. ( 58 App. Div. 622), and for that reason it is unnecessary to restate them here. The origin of the defendant's claim to so much of the premises upon which their road stands as lies south of the "Old Harlem Road" is precisely like the Lewis case, and the origin and source of plaintiff's title and of defendants' claim to premises lying north of the "Old Harlem Road" are in all respects like the Sander case; and the liability of the defendants to respond in damages from February 16, 1897, when they began to operate trains upon the steel viaduct, in so far as such operation interfered with the easements of light, air and access, was settled by the Lewis case, which was followed in both of the other cases cited. The question of defendants having acquired title by adverse possession was considered by this court in both the Fries and Sander cases. In the former it was said: "For these reasons the deed to the city was valid as against the railroad company, and it had no title to that part of the street in front of the plaintiff's premises, and its only rights, therefore, were those which it had acquired by adverse possession. Within the rule laid down in the case of Lewis v. New York Harlem R.R. Co. (cited above), that adverse possession did not give to the railroad company the right to carry its tracks, which for twenty years had run in a cut, upon a viaduct such as this is, above ground, in front of the plaintiff's premises. The case of Lewis applies fully to the one at bar." In the Sander case this court followed the decision just quoted, the presiding justice dissenting on the sole ground that "Title by adverse possession as to the twenty-four foot strip at least was established by the evidence. * * *" It is urged, however, that an error was committed in the admission of evidence as to the course of values of real estate on Madison and Lexington avenues subsequent to the year 1892. But a similar question was presented to and passed upon by a majority of this court in the Fries case, and it was there held that the evidence was not incompetent. It is also urged that the fee and rental damages awarded are excessive. A careful consideration of the evidence bearing upon that subject fails to sustain such contention. There is sufficient evidence to sustain the findings of the Special Term in this respect. The judgment is right and should be affirmed, and inasmuch as both parties appeal from the judgment, we are of the opinion that costs should not be awarded to either of them. Rumsey and O'Brien, JJ., concurred; Van Brunt, P.J., dissented.