#### Elizabeth B. Sanders, Individually and as Executrix of Charles W. Sanders, Deceased, Respondent, *against*The New York Elevated Railroad Company *et al.,*Appellants.

(Decided June 2d, 1890.)

Plaintiff in an action for an injunction against the maintenance of an elevated railroad in the street in front of his premises, and-for damages therefrom, having deceased, the action was revived in the name of his devisee and executrix. *Held,*that, it being an equitable action, and the question of damages being merely incidental and alternative, defendants were not entitled to a jury trial as to past damages claimed for loss of rentals before the death of the original plaintiff.

A finding of fact, ón trial by the court of such action, relating to damage by *262smoke, steam, gas, and cinders, of which there was proof, included a statement that grease, oil, and water were allowed to drop from passing trains, of which there was no evidence. *Held,*that, no motion to amend the findings having been made, and it appearing that the error had no influence on the result, it might he disregarded as surplusage.

Appeal from a judgment of this court entered on the decision of the judge on a trial without a jury.

The facts are stated in the opinion and in the report of the decision on the former appeal therein referred to, 15 Daly 388.

*Brainard Tolies*and *'Alexander S.*Lyman, for appellants. *Henry Cr.*Atwater, for respondent.

Larremore, Ch. J.

Our former decision in this action affirming the order of revivor (15 Daly 388, 7 N. Y. Supp. 641), expressly disposes of the first point raised upon this appeal. We think also that necessary inferences to be drawn from such decision must o.verrule appellants’ second point. They contend that they should have been granted a jury trial as to the claim for past damages for loss of rentals before the testator’s death. Our decision was that this action, which was pending at the time of Mr. Sanders’ death, was and is an action in equity for an injunction, in which the question of damages is merely incidental and alternative. It was revived in its entirety as an equitable action, and must be preserved in its integrity as an equitable action.

There remains the point that the learned trial judge included in one of his findings of fact a statement that grease, oil, and water were allowed to drop from passing trains, and fall on Third Avenue in front of said premises. There is no evidence to support such conclusion, and we cannot look upon it as anything but an inadvertence. It does not constitute an independent finding, but is included in the one referring to smoke, steam, gas, and cinders, as to all of which there is a great deal óf proof. This is not an instance of basing a judgment upon insufficient evidence or no evidence at all.

*263Here, in addition to the evidence upon the issues which had been tried, appears what purports to be a finding upon an issue which had not been tried. It is obvious that the judgment was intended to rest upon the findings on the issues actually discussed at the trial. The trial judge might have • entertained a motion to amend his findings in this respect if the matter had been called to his attention. It is evident, upon an inspection of the whole case, that this apparent error could not have had any influence on the result. We will not presume, for the sake of reversing, a judgment apparently just on the merits, that the judge, in order to enhance the damages; took into consideration elements not proved before him, and not even mentioned or referred to during the hearing. We think, under the circumstances, the obnoxious clause may be disregarded as surplusage and treated as if actually expunged. •

We do not regard the case of *Pappenheim*v. *Metropolitan Elevated R. Co.*(7 N. Y. Supp. 679, 28 N. Y. St. Rep. 577), as controlling. There the inadvertent finding was utterly irreconcilable with and antagonistic to the judgment, and was, moreover, made as a separate and distinct finding. That decision was put upon the ground that where two findings of fact are inconsistent, the appellant is entitled, in support of his exceptions, to have that taken as true which is the more favorable to himself. The case at bar is distinguishable from the case cited.

The judgment appealed from should be affirmed, with costs.

Bookstaver, J., concurred.

Judgment affirmed, with costs.