Robert Biggart, Respondent, against The Manhattan Railway Company et al., Appellants

Robert Biggart, Respondent, against The Manhattan Railway Company et al., Appellants. (Decided January 5th, 1891.) In an action to restrain defendants from maintaining and operating their elevated railway along the street in front of premises belonging to plaintiff, the judgment for plaintiff awarded an injunction, with a condition that it should be inoperative upon payment by defendants of a certain sum as damages to the fee from the maintenance of the railroad, and also awarded damages for past injury. Held, that the refusal of the referees by whom the action was tried to find, as a conclusion of law, that plaintiff was not entitled to recover damages for deterioration of the neighborhood caused by the construction and operation of defendants’ road, even if- error, was not ground for reversal, either as affecting the amount to be paid in avoidance of the injunction, or as affecting the award of past damages, since it would not be assumed that anything was allowed for such deterioration, as a substantive ground of recovery, no claim therefor having been made by plaintiff. Appeal from a judgment of this court entered upon the report of three referees. The facts are stated in the opinion. Jiilien T. Davies and. Brainerd Tolies, for appellants. Henry A. Foster, for respondent. [MAJORITY — Pryor, J.] Pryor, J. Appeal from a judgment of injunction and for damages. Action to restrain the maintenance and operation of defendants’ railway along the highway in front of plaintiff’s premises, and to recover for past injuries to plaintiff’s property from the presence and operation of said railway. The single error urged in impeachment of the judgment is, the refusal of the referees by whom the case was tried, to find, as a conclusion of law, that “ plaintiff is not entitled to recover damages for deterioration of the neighborhood caused by the construction and operation of defendants’ road.” So far as this refusal may be supposed to affect the amount to be paid by defendants in avoidance of the injunction, if error at all, it is not an error available for reversal of the judgment (Lawrence v. Metropolitan El. R. Co., now decided, ante p. 501). But the refusal of the finding is no error, even in respect of the recovery for past damages. It is a preposterous assumption that the learned referees allowed anything to plaintiff, as a substantive ground of recovery, for the deterioration of the neighborhood, i. e., for injury to other people’s property; and a court cannot, with propriety, be called upon to negative an obviously and indisputably absurd proposition. Besides, the conclusion of law propounded by defendants was utterly irrelevant to any claim of plaintiff apparent in the complaint or presented on the trial; and for that reason alone was properly rejected by the referees. But, that the fact of the deterioration of the neighborhood caused by defendants’ railroad, was competent and relevant evidence on the issue as to the deterioration of plaintiff’s property, is expressly affirmed in Drucker’s Case (106 N. Y. 157), where the court say: “ to measure and appreciate the individual loss to plaintiff, the nature and extent of the general injury was properly'and necessarily considered.” We see no error in the record, and the judgment must be affirmed. J: F. Daly, Ch. J., and Bisohoff, J., concurred. Judgment affirmed, with costs.