Myers v. Metropolitan Elevated Railway Co. — 46 N.Y. St. Rep. 196

Majority

p. 196

Edward Myers, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

(New York Common Pleas, General Term,

Filed June 6, 1892.)

Headnote

Railroad—Elevated—Evidence.

In an action for an injunction and damages against an elevated railroad, evidence tending to show that since the construction of the road the rental value of premises in the same street in the vicinity of plaintiff’s premises has been diminished is admissible.

Appeal from a judgment for the plaintiff, entered upon the verdict of a jury.

Action by an abutting owner to recover past damages sustained by reason of the erection, maintenance and operation of defendants’ elevated railroad in front of his premises, Ho. 201 South Fifth Avenue in the city of New York.

Henry Schmitt, for resp’t; Davies & Rapallo, for app’lts.

The learned trial judge, against the objection of defendant’s counsel, admitted testimony for the plaintiff tending to show that, since the construction and operation of defendants’ elevated railroad on South Fifth Avenue, the rental value of premises on the same street in the vicinity of plaintiff’s premises had been diminished, and the exceptions to the admission of this evidence are urged as presenting error which requires the reversal of the judgment appealed from.

The evidence, however, was admissible under the rulings made by the court of appeals. It was in respect to similar evidence that Judge Finch says, in Drucker v. Manhattan Railway Co., 106 N. Y., 157 ; 8 St. Rep., 599 , “ Objection was made to the proof that since the building of the elevated road the trade and business of Division street had fallen off, and the current of custom has largely lessened in volume and changed in character, and upon the ground that injury to the plaintiff and not to his neighbors was alone material. But to measure and appreciate that individual loss, the nature and extent of the general injury was necessarily to be considered. To ascertain how much the plaintiff was injured by the impairment of his easement required a survey of the general facts, and a deduction from them of the special and particular damage to be estimated.”

In Doyle v. The Manhattan Railway Co. et al., 128 N. Y., 488 ;

p. 197

40 St. Rep., 474 , it was held, to be competent for either party to show the general effect of the operation of the road upon other premises abutting upon the street, in the vicinity of, and similarly situated with plaintiff’s, where it appears that damages claimed by plaintiff, if actually sustained, must have been common- in the vicinity along the street, and because evidence of that character which was offered by defendants had been excluded the judgment was reversed.

No other errors are claimed, and the judgment and order deny, ing defendant’s' motion for a new trial should therefore be of. firmed.

Judgment and order affirmed, with costs.

Bookstaver," J., concurs.