George E. Sterry, Respondent, v. The New York Elevated Railroad Company et al., Appellants

George E. Sterry, Respondent, v. The New York Elevated Railroad Company et al., Appellants. (Submitted October 15, 1891; decided December 1, 1891.) Appeal from judgment of the General Term of the Court of Common Pleas for the city and county of Rew York, entered upon an order made March 12, 1891, which affirmed a judgment in favor of plaintiff entered upon the report of referees. This action was brought to restrain defendant from operating its elevated railroad in the street in front of plaintiff’s premises and for damages. The following is the memorandum of opinion: “ The plaintiff purchased the premises in question in 1886, several years after the construction of the railroad, and hence the defendants claim that he is not entitled to any fee damage on account of the maintenance and operation of the railroad. Our decision in Pappenheim, v. Metropolitan Elevated Railway Company (128 N. Y. 436), is an answer to this claim. “The defendants further claim that the plaintiff was not entitled to any rental damage, because the premises were in the possession of his tenants. To this claim our decision in Kernochan v. N. Y. Elevated Railroad Company (128 N. Y. 559), is an answer. “ The judgment should be affirmed, with costs.” Julien T. Davies and J. C. Thomson for appellants. John A. Weeks, Jr., and Henry A. Forster for respondent. [MAJORITY — Per Curiam] Per Curiam opinion for affirmance. All concur, except Earl, J., not voting. Judgment affirmed.