The court of appeals, in the case of Story v. Railroad Co., 90 N. Y. 122, decided that a bill in equity to restrain the taking of a street for the purpose of an elevated railroad under an act of the legislature giving permission therefor, was a proper remedy in cases where compensation for such taking was not made to an abutting owner on the street. The same decision was made in Lahr v. Railway Co., 104 N. Y. 268,10 N. E. Rep. 528. Under these cases there is no doubt but that the defendant’s road, as proposed to be constructed and opened, is to be an employment of the street for other than street purposes and a perversion of its use. The plaintiffs are entitled to an easement in the street, and the mere taking of the street entitles them to compensation. The rejection of the evidence offered to show that the premises of the several plaintiffs were not depreciated was not therefore erroneous. The abutting owners stand upon the same principle as a private owner of the fee *124of land taken for public use. Compensation must be first made for what is taken, to be determined by commissioners appointed for the purpose of estimating and fixing the damages. The judgment should therefore be affirmed, with costs.