In re Union Elevated R. R. — 28 N.Y. St. Rep. 386

Majority

p. 386

In the Matter of the petition of The Union Elevated R. R. Co. of Brooklyn, App’lt and Resp’t, relative to acquiring title to certain real estate, etc., of William C. Jughardt et al., Resp’ts and App’lts.

(Su reme Court, General Term, Second Department,

Filed December 9, 1889)

Headnote

1. Eminent domain—Damages—Evidence

In showing the market value and consequent impairment to premises by the taking of an easement, evidence as to the particular suitableness of the property to any given business for which it is used is admissible.

2. Same—Costs.

It is the practice not to allow costs in these special proceedings ; but even if the court had power to grant them, its decision refusing to do so will not be questioned unless mistake or gross misuse of its discretion is shown.

Appeal from order of special term, confirming report of commissioners of appraisal, and from order denying respondents’ motion for costs.

George W. Wingate, for petitioner; Phillips & Avery, for resp’ts.

This is an appeal from an order confirming the report of commissioners appointed to appraise and condemn as 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. Matter of N. Y., L. & W. R. R. 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 respondents’ 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. 27 Hun, 116 ; 37 id., 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 ruined 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

p. 387

paying for the same. The order appealed from should, therefore, be affirmed with costs.

In reference to the appeal from the order denying motion for costs, it has been the settled practice of the courts not to allow caste in these special proceedings. In the cases where costs have been allowed, the order appointing commissioners of appraisal has been reversed on appeal. R. & S. R. R. 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 Civ. Pro., § 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 see misuse or gross mistake in the exercise of the same. Morrison v. Agate, 20 Hun, 25 .

The order denying costs appealed from should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.