p. 263Frederick Storck, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts.(New York Superior Court, General Term,Headnote
Railroad—Elevated—Adjoining premises—Damages—Benefits.In an action to enjoin an elevated railroad company from running their road in front of plaintiff’s premises and for damages, the defendants alleged special and peculiar benefits conferred on plaintiff’s premises by reason of its station being at the corner by the premises; it was sustained only by the opinion of a single witness, and opposed by the plaintiff, who testified that his trade was not increased thereby. Meld, that the court properly refused to find that a benefit had been conferred on the premises by the railroad station.
Appeal by defendants from judgment entered upon findings and conclusions at special term.
Julien T. Davies & Brainard Tolles, for app’lts; Charles Gibson Bennett, for resp’t.
—The action was to enjoin the defendants from running their elevated railroad in front of plaintiff’s premises, and for damages.
The learned counsel for appellant argues that the court below erroneously refused to find certain matters as requested in behalf of defendants, that concerned, as is maintained, special and peculiar benefits, conferred on plaintiff’s premises by the railroad.
p. 264The evidence, on the subject was not so undoubted or so strongly in favor of the defendants as to require finding for the defendants. The supposed special and peculiar benefit arises mainly, as is sup-1 posed, from the relation of the station at the corner to the plaintiff’s house. The state of the evidence on this point is illustrated1 by the following parts of the testimony given. A witness for defendants said: “There is a special value given to the property ¡ situated at the station ; I believe the corners are benefited at least twenty-five per cent from the fact of the station being there.” A just criticism of this testimony would be that at least the witness 1 confounded an increase of value from general causes- with an increase caused specifically by the station. But this evidence was ¡ opposed by the plaintiff, himself using the property, who testified, 1 “ a good many people come and go from the station near by me , there. Yery few people going to the station in the morning, or ' leaving in the evening, leave me orders for bread; that has net much to do with my business; they pass without looking at my 1 business.”
On evidence of this kind the court was not incorrect in refusing to find as requested.
The effect of the defendant’s road was not to make the two avenues and streets connected with it thoroughfares. They were, 1 or would have become thoroughfares, irrespective of the railroad.
There was nothing in the evidence which required the judge to - find that the general rise in value of real estate in the second avenue was attributable largely to the operation of defendant’s railroad, or that the population in the neighborhood was increased greatly by that operation.
The measure of damages was the decrease of rental value. ¡ Most of the requests alluded to concerned matters of evidence-relevant to the issue, but did not call for any determination of the ¡ issue.
Judgment affirmed, with costs.
Sedgwick, Ch. J., and Dugro, J., concur.