Steinert v. Metropolitan El. Railway Co. — 33 N.Y.S. 560

Majority

p. 560

(12 Misc. Rep. 370.)

STEINERT v. METROPOLITAN EL. RY. CO. et al.

(Superior Court of New York City, General Term.

May 6, 1895.)

Headnote

Elevated Railroads—Damages—Noise and Vibration.

A finding that the value of the easements appurtenant to plaintiff’s premises taken by defendant elevated railroad company was $1,200 does not necessarily include the effect of noise and vibration on that value, merely because the damage in the past was adjudged to be at the rate of $60 a year, and the proportion of yearly rent to the fee value was shown to be about one-tenth of it

Appeal from special term.

Action by Joseph Steinert against the Metropolitan Elevated Railway Company and another. A judgment was rendered in favor of plaintiff, and defendants appeal.

Affirmed.

Argued before SEDGWICK, C. J., and McADAM, J.

Julien T. Davies and Brainard Tolies, for appellants.

W. W. Badger, for respondent.

An objection made by appellants to the judgment is that the judge, in estimating the fee value of the easements taken, included the effect of noise and vibration upon that value. This does not appear from any finding or conclusion. The assertion of it depends upon reasoning from the whole case. It is said, whereas the damage in the past was adjudged to be at the rate of about $60 a year, and the proportion of yearly rent to the fee value was proved to be about one-tenth of it, the finding that the fee value of the easements taken was $1,200 was founded upon an excessive valuation of the fee. The argument is that, as the past rental damage was $60 yearly, the fee damage could not be more than $600. Upon this it is said that, to reach the conclusion that the fee damage was $1,200, the injury from noise and vibration must have been added. This conclusion is not necessarily correct. The two valuations did not regard the same times nor the same circumstances. Valuations are not always continuous. Increase or decrease of values is often sudden. In ascertaining a present value, the reasonable certainties of the future fix, with other elements, the' present value. As in finding past damage, so in fee damage, it is competent to inquire if in the future, having in view the reasonable certainties of the future, the value of the future would be more or less if the railroad were absent. This is a matter of fact, as is the amount of the difference, if any there would be. On this matter the court found for the plaintiff, and the appellants have not shown that there was error in the finding. The plaintiff is not primarily bound to show that the finding is incorrect. It is enough if he show that the defendants have not established error. Such error has not appeared in the evidence or facts. Judgment affirmed, with costs.