Scallon v. Manhattan Railway Co.

Patterson, J.:

It is urged by the appellants that what was decided by this court in Hindley v. Manhattan Railway Co. (103 App. Div. 504), while it is controlling in the case of Wohlers v. Manhattan R. Co. (112 App. Div. 911), does not apply to this case. That is a misapprehension of counsel. The Hindley case is directly in point and for the reasons stated in the opinion of Mr. Justice Hatch therein, we conclude that thé Statute of Limitations does not bar the plaintiffs’ right to relief. "We have carefully "examined the record with reférence to the awards of fee and rental value and find that there is sufficient evidence to sustain the judgment appealed from.

It is contended, however, by the appellants that the court erred in its finding of fact and that an award was made with respect to a larger and somewhat different property than that to which the proof related. The plaintiffs’ premises are situated at the southwest corner of Forty-sixth street and Second avenue in the city of Mew York. The lot is twenty-five feet front and seventy-five feet deep and is so *264described in the complaint and in the deeds which are- in evidence. There is a fóur-story building fronting on Second avenue having a depth of fifty feet, with a store on the first floor and two'apartments of four rooms each on the three upper floors. Back of. that structure there is a small and apparently insignificant extension. All the evidence which was before the court'.and upon which it acted was confined to that much of the lot and the building thereon’ as was of the dimensions of twenty-five feet front by fifty deep arid the evidence shows that the estimates as to fee and rental yalue were confined thereto. The finding of the court with reference to dimensions, was evidently taken from the complaint and from the' deeds. The proofs upon which the court acted established that the property really involved was damaged to the amount found. The error in description in the findings of fact is of no importance, for the proofs were limited and there can be no recovery at any time for the taking of easements appurtenant to. this small area in the rear of the property, and for which n’o award was actually made. The award covers the' whole premises.

The judgment should be affirmed,'with costs,

O’Brien, P. J., McLaughlin, Laughlin and Houghton, JJ., concurred.