#### Charles Welsh, as Executor, etc., of George W. Welsh, Deceased, Respondent, *against*The New York Elevated Railroad 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, and also damages for past injury; but on the trial defendants were not allowed to avail themselves of special benefits to plaintiff’s property from the proximity of a *516■ station of the railway, as affecting the estimate of the injury to the rental value and the fee value of the property. *Held,*that the exclusion of all consideration of such benefits in the award of damages was error, for which the judgment must be reversed.

Plaintiff’s interest in the premises was a leasehold estate, with a contingent right of renewal. *Held,*that it was error to award him a perpetual injunction ; the restraint should be only during the subsistence of plaintiff’s interest.

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

The facts are stated in the opinion.

*Julien T. Davies, Samuel Blythe Boyers,*and *J. 0. Thompson,*for appellants.

*Q. Willett Van Ness,*for respondent.

Pryor, J.

In this action, for an injunction against defendants’ railway and for damages, plaintiff has judgment for an injunction and for $15,650 damages for . past injury. Because of error apparent in the record, the judgment must be reversed.

. I. Seeking to avail themselves of the principle afterwards enunciated in Newman’s Case (118 N. Y. 618), defendants requested the trial court to find conclusions of law, as fol-lows : “ In estimating the combined injury done to the rental value of said premises by said railroad in Greenwich Street and railroad station in Barclay Street, the benefits conferred by the said station upon the same should be considered in mitigation of damages.” And again : “ The increased rental value of said premises due to the benefits conferred by said station upon said premises, should be considered as diminishing *pro tanto*the damage *to the*rental value of the *same.”*Each'of these requests was refused, and to such refusal , defendants duly excepted.

Then, the court was requested to find the fact that, “the ' existence of said station on the said railroad has rendered said premises more accessible to other parts of the City of *517New York than they otherwise would be. This has added to the rental and fee value of said premises.” This request also was refused, and to the refusal defendants duly excepted.

Furthermore, defendants offered evidence of special and peculiar benefits to plaintiff’s property from the maintenance of defendants’ railway and station, but the evidence was excluded, and defendants excepted. The rejection of this evidence is adduced, not as error in itself (it probably was), but as manifesting that, in the judgment of the court, proof of benefit was incompetent to mitigate injury. But, that the court excluded all consideration off benefits in its award for damages to plaintiff’s property, is clear beyond controversy, in its suggestion to the witness to leave benefits out in his estimate of injury to rental value. Indeed, upon all the evidence it is impossible to resist the conclusion, were it necessary to invalidate the judgment, that the learned trial judge yielded to the then prevalent doctrine of the court, and eliminated benefits of which there was ample evidence, from his estimate of injury to plaintiff’s property.

The opinion in Gray’s Case, herewith decided, *(ante*p. 510), renders further discussion of the point superfluous.

II. In any litigation a party’s recovery must be on the • basis of his interest, and can only be commensurate with his interest. Here, plaintiff’s interest in the premises affected, is a leasehold estate terminable 1st July, 1892, but with a contingent right of a renewal for twenty-one years. Yet, the court allowed plaintiff a perpetual injunction, forever restraining the maintenance and operation of defendants’ railroad. The restraint should have been only during the subsistence of plaintiff’s interest. Upon an extension of his term another injunction might issue *(Welsh*v. *Railroad Co., 8*N. Y. Supp. 492).

Although this error might be obviated by a modification of the judgment, still for the other it must be reversed.

J. F. Daly, Ch. J., and Bischoee, J., concurred.

Judgment reversed.