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MARGARET LOY, Respondent, . THE METROPOLITAN ELEVATED RAILWAY COMPANY and THE MANHATTAN RAILWAY COMPANY, Appellants.

Judgment error in calculating damages the remedy is by motion.

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Where an error has been made in the calculation of past damages resulting to an abutting owner from the operation of an elevated railroad, a motion should be made to correct the judgment.

No appeal is necessary to correct such an error.

APPEAL by the defendants, The Metropolitan Elevated Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of April, 1896, upon the decision of the court rendered after a trial at the New York Special Term.

This appeal was transferred from the first department to the second department.

Julien T. Davies, L. W. Naylor and Howard Me Williams, for the appellants.

Charles A. B. Pratt and Edward A. Hibbard, for the respondent. PER CURIAM:

We think the award in this case both for rental and fee damage was justified by the evidence given upon the trial, except that the

* The other cases of this term will be found in volume 14 App. Div.- [REP.

APP. DIV.-VOL. XV. 1

SECOND DEPARTMENT, MARCH TERM, 1897.

[Vol. 15. award for rental damage should have been from September 23, 1886, instead of from July 7, 1885. This increased the damages for past rental by the sum of $183, in excess of what plaintiff was entitled to recover upon the basis of damage adopted by the court below. Relief could have been obtained in this regard by motion made to correct the judgment, as it was a clear error based upon the mistaken assumption of the date when plaintiff's interest was acquired. No appeal was necessary to correct this error, as the court possessed the power to correct its own judgment

The judgment should, therefore, be modified by deducting therefrom the sum of $183 awarded as rental damage, and, as modified, the judgment should be affirmed, with costs.

All concurred.

Judgment modified by deducting therefrom the sum of $183 awarded as rental damage, and, as modified, affirmed, with costs.

THOMAS F. MCGEARTY, Respondent, v. THE MANHATTAN RAILWAY COMPANY, Appellant.

Negligence elevated railroad allowing its platform to become so crowded that a passenger is pushed off into the street.

An elevated railroad company which, after its platform is full, continues to sell tickets and allows passengers to go upon its platform in such numbers as to crowd a passenger already there forward, and off from the front edge of the platform, on which there is no protecting rail, is liable for the injury thus occasioned to him; such liability does not rest upon the fact that the plat form was insufficient to accommodate ordinary traffic, or that the structure as such was defective.

APPEAL by the defendant, The Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of April, 1896, upon the verdict of a jury, and also from an order entered in said clerk's office on the 21st day of April, 1896, denying the defendant's motion for a new trial made upon the minutes.

App. Div.]

SECOND DEPARTMENT, MARCH TERM, 1897.

This appeal was transferred from the first department to the second department.

Joseph H. Adams and Julien T. Davies, for the appellant.

Edgar J. Nathan and Francis L. Wellman, for the respondent. PER CURIAM:

The action is to recover damages for personal injuries sustained by the plaintiff, occasioned by his being crowded from the platform by the passengers assembled at the defendant's elevated station at Grand street in the city of New York, which caused the plaintiff to fall into the street below. The evidence given upon the trial was conflicting, the defendant's testimony tending to establish that the plaintiff fell from the platform while trying to board the rear car of a moving train. But upon this point the evidence warranted the jury in finding that the cause of the plaintiff's falling from the platform was on account of the overcrowding of the platform with passengers waiting to take the train for transportation over the defendant's railroad, and also to find that this condition was created by the negligence of the defendant.

It may be conceded that defendant's elevated station at Grand street is properly constructed and is sufficient in extent to answer all of the ordinary requirements for which it is used, and accommodate passengers who assemble there for the purpose of boarding the defendant's trains. But the theory upon which the case was tried and submitted to the jury, and upon which the negligence of the defendant was predicated, did not necessarily involve this question. The negligence of the defendant was based, not upon any infirmity in the structure as a structure, but upon the character of its use at the particular time. It was sufficient to accommodate ordinary traffic, for so fast as the platform filled with passengers they were removed by the trains of the defendant, which stopped at the station for that purpose at frequent intervals. It is easy to see that, as there was a constant accumulation of passengers upon the platform unless they were removed by the trains, the platform of the station would become overcrowded, and that such overcrowding might render the place unsafe. That was shown to be the condition in this case. The trains did not remove the passengers as fast

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