Moore v. New York Elevated Railroad — 15 Daly (N.Y.) 510

Majority

p. 510

Eliza Jane Moore, Appellant, against The New York Elevated Railroad Company et al., Respondents.

(Decided February 3d, 1890.)

Headnote

In an action to recover damages for the construction and maintenance of an elevated railroad in the street in front of plaintiff’s premises, a change in the character of the neighborhood, directly or indirectly attributable to the operation of the road, cannot be taken into consideration in estimating plaintiffs damages.

The action of the court in withholding from the jury the question of noise or privacy as an element of damage, is no ground of reversal, where it appears that the jury allowed nothing for the greater injury of deprivation of air, light, and access.

The question to a witness, “was the reason of your going away from there in any way connected with the effect produced by the operation of the road ? ” is properly excluded, as calling for the conclusion of the witness as to the reason for doing a certain act.

Appeal from a judgment of this court entered ¡upon the verdict of a jury in favor of defendant and from an order ' denying a motion for a new trial upon the minutes.

The facts are stated in the opinion.

Charles E. Whitehead and Stanley W. Dexter, for appellant.

Charles A. Gardiner and Brainard Tolles, for respondents.

This is an action to recover damages for the maintenance and operation of the defendants’ elevated railroad in front of premises 371 Greenwich Street, in which the plaintiff has a life interest. The trial judge charged the jury that the defendants were required to make' compensation to the plaintiff for the difference, if anjq in the rental value of her property, due to interference with light, air, and access of the same by the maintenance and operation of defendants’ railroad. The only question submitted to the jury

p. 511

was one of damages. Oil the part of the plaintiff it was shown that, from 1869 to 1877, the average rental of the building was $2,200 per year, the tenant to make repairs, whereas from 1882 to the date of the trial, the rent had averaged about $1,600 per year, the landlord to make the repairs. The’ elevated railroad was there during a portion of the first period, and there is no evidence that trains ran with greater frequency or that any greater burden was imposed upon adjoining property in" the one period than in the other. On the part of the defendants, it is shown that this portion of Greenwich Street, from 1870 to 1879, was a stand for Long Island farmers who come into town in the earl}7 morning to sell their produce, and that grocers came down to this place to buy of them, by reason of which the trade in produce and groceries became centred in this locality; and that, between 1879and 1880, this trade was removed to Gansevoort Market, and in consequence of this removal rents in that locality, especially of basements and sidewalk privileges, fell off considerably. The court left it to the jury to say whether the difference in the rent of this property was due to the cause contended for by the plaintiff or to the cause contended for by the defendant, and we do not think there is any error in the charge of the court in this respect.

We also think that the exception taken to that portion of the charge which said that the change in the character of the neighborhood directly or indirectly attributable to the operation of the elevated railroad, cannot be taken into considera,tion as causing damages for which plaintiff may recover, is without merit. This portion of the charge is in exact accordance with the law as laid down in this court for many years (Thompson v. Manhattan R. Co., ante, p. 438; Meyer v. Metropolitan Elevated R. Co., General Term, January, 1886, MS. opinion; see, also, Greene v. New York Cent. & H. R. R. Co., 65 How. Pr. 154 ).

It is true that this court has, at General Term, decided, in the case of Kane v. Metropolitan Railway Co., (ante, p. 294), that noise is an element of damage to be considered by the jury, and such decision is binding upon us. But we think it

p. 512

is clear that withholding this element from the consideration of the jury, and also the element of privacy, could have had no effect upon the minds of the jury; for it is apparent that the deprivation of air, light, and access must be a greater • injury to the premises in question than either noise or privacy, and the jury allowed nothing whatever for these greater injuries if any, and therefore would not in any event have awarded damages for the lesser evils.

The only other .question to be considered is an exception to the exclusion of the following question : “ Was the reason of your going away from there in any way connected with the effects produced by the operation of the road ? ” This was excluded under defendants’ .objection. The question called for the conclusion of the witness as to the reason for doing a certain act, and we think was clearly incompetent, as the motive.of a witness in performing an act can only be given in evidence where there is ■ no other method of proving it. In this case we think there was, and that therefore the objection is untenable.

The judgment should be affirmed, with costs.

Bischoff, J., concurred.

Judgment affirmed, with costs.

Cases cited

Greene v. New York Central & Hudson River Railroad 65 How. Pr. 154 N.Y. Super. Ct. p. 511