In re Union Elevated Railroad — 7 N.Y.S. 853

Majority

p. 853

In re Union El. R. Co.

(Supreme Court, General Term, Second Department.

December 10, 1889.)

Headnote

1. Eminent Domain—Damages.

In proceedings to condemn a right .of way for a railroad in a street, evidence of damages to adjacent property, caused by the building of the railroad, arising from the fact that the property is used for a particular purpose, is admissible.

3. Same—Costs.

Even if the trial court has power to allow costs in such proceedings, under Code Civil Proc. Ñ. Y. § 3240, as the decision of that matter is in its discretion, it will not be reviewed on appeal, in the absence of abuse of such discretion.

Appeal from special term, Kings county.

Petition of the Union Elevated Railroad Company of Brooklyn, to acquire title to easements in a street in front of property owned by William C. Jughardt, Frederick Koch, and Christiana Koch. Commissioners of appraisal were appointed, and their report was confirmed. From the order of confirmation the petitioner appeals, and from an order denying their motion for costs the property owners appeal.

p. 854

Argued before Barnard, P. J., and Dykman aiid Pratt, JJ.

Wingate & Cullen, (Geo. W. Wingate, of counsel,) for petitioner. Phillips <£• Avery, for property owners.

This is an appeal from an order confirming the report of commissioners appointed to appraise and condemn a right of way along Myrtle avenue, in the city of Brooklyn, in front of two separate parcels of land owned by the respondents above named. The damages awarded for injury to easement was the sum of $1,500 in each case. It has been the settled practice of the courts in this state not to disturb and reverse the report of the' commissioners appointed in such cases, unless an error in judgment can be shown which led to the awarding of excessive and exorbitant damages. In re Railroad Co., 27 Hun, 116 . There is sufficient evidence in this case to' support the award as found, and there is no basis for a claim that they have-mistaken the principle upon which they should proceed in forming their opinion. In regard to the objection to the admission of evidence tending to show damages to respondent’s property arising from the special use thereof, in our opinion said objection is not supported by the law of this state. In showing the market value, and the consequent impairment to the same, by the taking of an easement, the owner is at liberty to show the particular suitableness of his property to any given business. In re Railroad Co., 27 Hun, 116 ; In re Commissioners, 37 Hun, 537 . In the present case the premises were used for a laundry, and the building of the railroad cut off the light, which was highly needful in the conduct of the same, and the drippings from the structure mined the clothing when it was being loaded in wagons. The owner had the right to carry on any lawful business, and the railroad which took the easement without his consent had no right to deprive him of any advantages-which he might derive without paying for the same. The order appealed from should therefore be affirmed, with costs.

In reference to the appeal from the order denying the motion for costs, it, has been the settled practice of the courts not to allow costs in these special proceedings. In the cases where costs have been allowed, the order appointing commissioners of appraisal has been reversed on appeal. Railroad Co. v Davis, 55 N. Y. 147 . Even assuming that the court at special term had the-power, if it so wished, to grant costs under Code Civil Proc. § 3240, yet, having exercised its discretion in the negative, its decision in regard to the matter will not be questioned by the appellate court, unless we can show misuse- or gross mistake in the exercise of the same. Marrison v. Agate, 20 Hun, 25 . The order denying costs, appealed from, should therefore be affirmed», with costs. All concur.