Johnson v. New York El. R. — 30 N.Y.S. 920

Majority

p. 920

(10 Misc. Rep. 136.)

JOHNSON v. NEW YORK EL. R. CO. et al.

(Common Pleas of New York City and County, General Term.

November 5,1891.)

Headnote

1. Elevated Railroads—Damages to Abutters.

The fact that plaintiff’s premises, at the time of the trial, are as valuable as before the construction of defendant’s elevated railroad in the street on which the premises abut, does not show that they were not damaged thereby, where other property in the neighborhood has increased in value.

3. Same—Past Damages—Evidence.

Evidence of the fall in rental values on the same street and in their neighborhood since the construction of the road is admissible on the question of past damages.

Appeal from equity term.

Action By Anna A. Johnson against the New York Elevated Railroad Company and another to enjoin the operation of defendants’ elevated railroad in the street in front of plaintiff’s premises known as “633 and 635 Third Avenue,” and for damages alleged to have accrued from loss of rents due to the presence of the railroad. There was a judgment in favor of plaintiff, and defendants appeal. Affirmed.

Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ.

Brainard Tolies, for appellants.

Eugene D. Hawkins, for respondent.

The judgment is assailed for alleged insufficiency of the evidence to show pecuniary damage to either the fee or rental value 'of the plaintiff’s premises, and for alleged erroneous rulings on the trial. The premises affected by the action were owned by the plaintiff since May 1, 1888, and consist of the two four-story buildings known as “633 and 635 Third Avenue,” with the plot of ground upon which they are erected, the plot being 49 feet 6 inches in width, 64 feet 4 inches in depth, and situated on the southeast corner of Third avenue and Forty-First street, in the ‘city of New York, with the frontage and width on Third avenue. The present buildings are the same which existed in 1872, and the first floors thereof are used for stores, the upper floors for dwellings. The defendants’ elevated railroad extends on and along Third avenue, in front of the premises, was constructed in 1878, and has been continuously operated since that time. The action was begun in 1890, and tried in 1892. The injurious character of the physical effects of the railroad upon the plaintiff’s premises appeared from evidence which remained uncontroverted; and the awards of $1,280 for rental and $2,000 for fee damages find adequate support. Freund, a builder, real-estate owner, dealer, and agent of more

p. 921

than 20 years’ active experience in the locality of the plaintiff’s, premises, testified to the effect that the premises in 1873 were worth $01,000, and that the ratio of rental to fee value, then generally prevalent, was 10 per cent., but that at the time of the trial, in 1892, the ratio had declined to from 7 to 8 per cent. The accuracy of this testimony was not challenged. From the testimony of Kyle and Kenman, it appeared that the aggregate annual rental value of the plaintiff’s premises in 1892 was not above $4,576, which, at the ratio of 8 per cent, to the fee value, fixed the latter at not more than $57,200. From Freund’s testimony, it is to be concluded that the rental value of the plaintiff’s premises in 1873 was $6,100; and it is apparent, therefore, that, had the premises recovered their former rental value, they would have been worth at the time of the trial, at the ratio of 8 per cent., $76,250. By fair inference from the evidence, also, the continued depression of the fee and rental values of the plaintiff’s premises was attributable to the presence of the defendants’ elevated road. Freund further testified that rents-generally in the locality of the premises declined from 187-5 to 1880; but that in 1880 there began a period of gradual recovery, which endured, with regard to property elsewhere than on Third avenue, until the time of the trial, at which time the rents had reached a point which was in excess of the rents of 1873; further, that with regard to property on Third avenue the recovery ceased about 1885 or 1886, from which time they had again declined, and at the time of the trial were from 20 to 30 per cent, below the rents of 1873. It was conceded that Third avenue, because of its greater traffic, was a street superior to other streets, adjacent to and crossing it. Testing the witness’ statements by the annual rents shown to have been collectible from premises other than those affected by this action, he appears to be well corroborated. Lots on First avenue, where there is no railroad, in 1873, sold for $6,500; in 1891, for $12,000. In 1873, at the ratio of 10 per cent., their rental value was $650; in 1892, at the ratio of 8 per cent., $960,-—an increase of nearly 50 per cent. Betjeman’s property, at Third avenue and Thirty-Sixth street, rented, in 1873, for $2,600; in 1892, for $2,100,— a decrease of about 20 per cent. The Seasongood house, 764 Third' avenue, in 1874, rented for $3,876; in 1892, for $3,132,—a decrease of over 20 per cent. Kelner’s house, 670 Third avenue, in 1874, produced an average monthly rental of $334, which was at the rate of $4,008 annually; in 1892, the annual rental was $3,252,—a decrease off about 20 per cent. It does not follow that, because the trial judge found the fee value of the plaintiff’s premises at the time of the trial to be fully up to the value of 1873, his conclusion that the plaintiff sustained a loss to such value is without support. As already stated, if the plaintiff’s premises had shared in the recovery of the rental values of 1873, their fee value at the time of the trial, observing the changed ratio of rental to fee value, would have been $15,250 above what it was in 1873.

1-To error is to be predicated of the trial judge’s refusal to find that the plaintiff’s premises were not damaged by the railroad structure

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apart from the operation of trains thereon, and vice versa. He properly found the damage to have resulted from the structure and the operation of trains, treating the two elements as integral parts of one and the same obstruction. Peyser v. Railway Co., 13 Daly, 122 ; Sperb v. Railway Co., 137 N. Y. 155 , 32 N. E. 1050 . Evidence of the decline of rentals of property on the same street with the property alleged to have been damaged is relevant and admissible. Myers v. Railway Co. (Com. Pl. N. Y.) 19 N. Y. Supp. 223 . The Cook Case, cited by the defendants’ counsel (Cook v. Railroad Co., 3 Misc. Rep. 248 , 22 N. Y. Supp. 790 ), holds no more than that such evi- • dence does not sustain the claim of damage, in the absence of evidence tending to show the rental value of the premises alleged to have been damaged. Yo error prejudicial to the defendants appears from other exceptions urged On this appeal. Retaxation of the costs, so as to include the item of disbursements for the stenographer’s minutes, furnished by direction of the trial judge, was authorised. Baker v. Codding (Com. Pl. N. Y.) 23 N. Y. Supp. 5 .

The judgment should be affirmed, with costs. All concur.

Cases cited

Sperb v. Metropolitan Elevated Railway Co. 137 N. Y. 155 N.Y. 1893-01-31 p. 922