Bolger v. Metropolitan Elevated Railway Co.

With a single exception, which will' be presently noted, the judgment is right. The exception relates to that part of the judgment which provides that an injunction issue against the maintenance of so much of defendants’ railway and structure as is within the limits of First avenue in front of -plaintiff’s premises, unless the defendants shall pay to him the sum of $3,500. A careful review of the evidence upon this branch of the case has. satisfied .us that the proof does not sustain a finding of more than $3,000 damage. But as substantial damage has been abundantly established, it is only necessary to modify the judgment according to the rule laid down in Blumenthal v. N. Y. Elevated R. R. Co., 42 St. Rep., 683, and by deducting from the money part the sum of $175 awarded, as an allowance upon the amount of the fee damage.

As thus modified the judgment should be affirmed, without costs to either party. Order to be settled on notice.

Freedman, Dugro and Gildersleeve, JJ., concur.