Kearney v. Metro. El. Ry. Co.
| Decision Date | 01 December 1891 |
| Parties | KEARNEY v. METROPOLITAN EL. RY. CO. et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from superior court of New York city, general term. Affirmed.
Action by Peter Kearney against the Metropolitan Elevated Railway Company and another to restrain defendants from maintaining their road in front of plaintiff's premises, and for damages. Plaintiff obtained judgment, which was affirmed by the general term. Defendants appeal.
Brainard Tolles, for appellants.
G. Willett Van Nest, for respondent.
The judgment in this case contains an injunction restraining the defendants from the continued maintenance and operation of their elevated railway in front of the plaintiff's premises No. 755 Sixth a venue in the city of New York, unless, within the time fixed therein, the defendants pay to the plaintiff the sum of $525 as the price of so much of the plaintiff's casements, or other property appurtenant to his said premises, as is taken, appropriated, or otherwise interfered with by the maintenance and operation of the railway. The judgment also awards to the plaintiff the sum of $1,062 for the injuries to his property sustained during the six years preceding the commencement of the action, with the interest thereon. The questions involved in this appeal are in respect to the plaintiff's interest in the property. The building is a four-story brown stone front,-the second above Forty-Second street; the first story being used as a store, and the apartments above fitted up for dwellings. One of the passenger platforms of defendants' stations extends across the entire front of the building. The nature of the plaintiff's interest appears from the following facts, found by the trial court: On the 1st of May, 1863, Glovina R. Hoffman, who was then the owner of the land, executed and delivered to one John C. Sares a lease in writing and under seal, in which her husband joined, whereby she demised to Sares the premises, which, it seems, then consisted of a vacant lot only, for the term of 21 years from that date, at the yearly rent of $250 per year, besides all taxes and assessments. The lease also contained numerous conditions and covenants, none of which need be referred to except the following: It was stipulated that if, during the term, the lessee should erect upon the lot a dwelling, three stories or more in height above the basement, and constructed of brick or stone, the lessor would, at the expiration of the term, either pay to the lessee the just and full value of the house at the time, such value to be ascertained according to a method prescribed in the instrument, or grant a new lease to the tenant or his assigns for a further term of 21 years, at a yearly rent, to be ascertained as therein provided for. The lease also provided for other renewals thereof or the purchase of the building at the option of the lessor; and also that at the final termination of the lease the lessee or his assigns might remove the building on certain conditions if the landlord did not elect to purchase. In March, 1866, the house in question having been then erected, Sares assigned the lease, with all its benefits and obligations, to the plaintiff for the consideration of $8,000. The plaintiff took possession of the premises at the...
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