Augusta Ottenot, as Executrix, etc., Respondent, v. The New York Lackawanna and Western Railway Company, Appellant

Augusta Ottenot, as Executrix, etc., Respondent, v. The New York Lackawanna and Western Railway Company, Appellant. In an action against a railroad corporation to recover damages because of its interfering with plaintiff’s rights in a street adjoining his premises, plaintiff is not entitled to a recovery for permanent diminution in value of the premises; but only damages sustained prior to the commencement of the action. (Argued November 26, 1889; decided January 14, 1890.) Appeal from judgment of the General Term of the Superior Court of Buffalo, entered upon an order made October 8, 1888, which affirmed a judgment in favor of plaintiff entered upon a verdict. This action was brought to recover damages to plaintiff’s, premises, by reason of the building of an embankment by defendant on an adjoining street. As a majority of the court did not concur in the opinion, it is not reported in full. The only portion of the opinion in which a majority agree is the following: “ The plaintiff was not entitled to recover for the permanent diminution in value of his lots, but was entitled .only to recover such damages as he sustained prior to the commencement of the action, within the rule laid down in the Uline Case and in Pond v. Met/i'opolitan Elevated Railroad •Gonvpcmy (112 B. ,Y. 186).” John G. Milburne for appellant. LeRoy Parker for respondent. Uline v. N. Y. C. & H. R. R. R. Co. (101 N. Y. 98). [MAJORITY — Earl, J.,] Earl, J., reads for reversal and new trial. Finch and Gbay, JJ., concur; Bugeb, Ch. J., Andbews and Peckham, JJ., concur in result on the ground that there is another remedy,? and because of the erroneous admission •of evidence as to damages. Judgment reversed.