Opinion
April Term, 1897.
Judgment affirmed, with costs. —
This is an appeal from a judgment entered upon a decision made at Special Term in the county of Niagara. The decision contained the following conclusions of law: " First, That plaintiff's premises are not within the limits of Main street in the city of Niagara Falls, N.Y., and the line of Main street as adopted by the council, August 22d 1892, and recorded in the city clerk's office, and a map of which is filed and indexed in Niagara county clerk's office, September 22d 1892, is not the correct east line of Main street along plaintiff's premises. Second, That a perpetual injunction issue restraining the city and its officers, agents and servants from interfering with or removing the buildings upon plaintiff's premises." In respect to the important questions of fact determined by the Special Term in its findings of fact in favor of the plaintiff, there was a conflict in the evidence. Upon looking into the evidence we think it sustains the conclusions of fact stated in the findings of the learned trial judge. In 1892, Burns, a civil engineer of the city, prepared a map, which was submitted to the common council and approved by it, and it was ordered filed in the county clerk's office. Burns testified that the common council ordered him to file it. That map showed a profile of the part of Main street which included the premises in question, and it was indexed in the county clerk's office in a book kept for that purpose If the line found upon that map were to prevail, it would cut off from the plaintiff's building some four and thirty-five-one-hundredths feet. The evidence seems to indicate quite clearly that it was the intention of the defendants to interfere with the buildings of the plaintiff, and to take such measures as the city and its officers should deem expedient to establish the line as proposed upon the map which had been filed by the direction of the common council with the county clerk. We think the conclusions of law stated by the trial judge should be sustained. ( Evans v. Board of Street Commissioners, 84 Hun, 206; Flood v. Van Wormer, 70 id. 415; S.C. affd., 147 N.Y. 284; Folmsbee v. City of Amsterdam, 142 id. 118.) Two or three rulings made in respect to evidence offered during the trial are made the subject of criticism. We have looked at them and are satisfied that the rulings present no prejudicial error requiring us to disturb the findings of fact made by the trial judge. Nor do we think the defendants can complain successfully of the statement made at the conclusion of the findings that the damages claimed in the action were not considered "as they, if any, accrued after the commencement of this action, and were eliminated from the case, the claim therefor having been withdrawn by the plaintiff upon trial." It is not apparent how the defendant suffered by reason of such statement. The statement is probably based upon the colloquy which ensued between the court and the counsel during the trial. We think there was no error in awarding costs in favor of the plaintiff. The judgment should be affirmed, with costs. All concurred, except WARD, J., not sitting.