#### S. Charles Welsh, surviving executor and trustee, Resp’t, *v.*The Manhattan Elevated R. R., Co. *et al.,*App’lts.

*(New York Superior Court, General Term,*

*Filed January 6, 1890.)*

1. Trial—Findings.

A judgment will not be reversed because of inconsistent conclusions of law when the judgment directed to be entered is in accordance with the correct conclusions of law on the facts found.

2. Same.

In an action for trespass by an elevated railroad, the court found that its act had diminished the rental value of plaintiff's premises, and fixed the amount of damage. The court also found at defendants’ request that the evidence did not establish any definite amount of damage for which any judgment can be rendered. *Held,*that this was a finding of law and not of fact, and cannot overrule the correct conclusion of law that he was entitled to judgment for the amount which the court found as a fact that he had sustained.

Appeal from judgment entered on decision of the court at special term.

*Samuel B. Rodgers,*for resp’t; *Geo. W. Van Ness,*for app’lts.

*512Ingraham, J.

The court found as a fact that the trespass committed by the defendant has diminished the rental value of the plaintiff’s premises from the 16th day of March, 1882, to the time of the trial, and that the damages to the plaintiff for such diminution was the sum of $5,198.

This finding is sustained by the evidence, and justifies the conclusion of law that the plaintiff is entitled to judgment against the defendant for that sum. The court also found at the request of defendant as follows:

> “ *Thirty-first.*The evidence does not establish any definite amount of damage for which any judgment can be rendered.” And it is now claimed by the appellant that this finding is inconsistent with the findings before mentioned, and for that reason the judgment should be reversed. But it is clear that this thirty-first finding does not state a fact. By § 1022 of the Code the decision of the court.on a trial without a jury must state the facts found and the conclusions of law separately; as to what the evidence does or does not establish is a conclusion and not a fact. The fact as to the amount of damages was found, and if the thirty-first finding above cited is of any effect at all, it is as a conclusion of law, and it is clearly erroneous; it cannot affect or overrule the correct conclusion of law that the plaintiff was entitled to a judgment,for the amount of the damage that the court finds as a fact was sustained by the plaintiff in consequence of the trespass.

No principle requires us to reverse a judgment because of inconsistent conclusions of law, when the judgment directed to be entered is in accordance with the correct conclusion of law on the facts found.

The trial judge refused to find as a fact that the plaintiff’s access to the premises had not been interfered with, stating as his reason therefor, “ I refuse to so find, as the plaintiff will not recover for interference with access.”

We think the facts justified such a refusal, and we cannot reverse the judgment because of the reason assigned by the trial judge for the refusal to find one of the defendant’s requests, especially where he has found the facts covered by the request, and such finding made is sustained by the evidence. <

Nor do we think that the terms on which the defendant can acquire the interests of the plaintiff in the easement should be modified. The condition that the injunction should not be operative on the payment of the value of the easement, is for the benefit of the defendant. He is not bound to avail himself of its provisions. The interest that the plaintiff has in the easement appropriated by the defendant is the right to use such easement for the unexpired term of the lease, and the court fixed the value of such use of the easement for such unexpired term and provided for a conveyance to the defendant.

It is not certain that plaintiff will accept a renewal of the lease, or will have any interest in the easement after his present term has expired. The defendant cannot complain because the court fixed the value of the easement too low, or because the court refused to compel the defendant to pay for the value of the use of *513the easement for a future period, but left the rights of the parties to be settled by a new action in case it should subsequently appear that a continuance of the trespass would cause future injury to the plaintiff’s rights.

These are the only exceptions which the appellants present to us as requiring a reversal of the judgment, and we think none of them well taken.

The judgment should, therefore, be affirmed with costs.

Freedman, J., concurs.