Paret v. New York Elevated Railroad

The defendant constructed an elevated railroad in the street in front of premises No. 405 Greenwich street, in the city of New York, in 1870; and soon after it ' commenced the operation of said road, which has ever since continued. The plaintiffs here seek to recover damages to the premises in question, caused by the maintenance and operation of said elevated railroad. Hester Paret, the mother of the plaint

Two species of damage, resulting from the same act, do not give two separate causes of action. Trask v. Railroad Co., 2 Allen, 331 ; Van Leuven v. Lyke, 1 Comst., 517; Howe v. Peckham, 6 How. Pr., 229 . This view was evidently taken by the learned trial judge. In his charge to the jury, he said : “Now there are two elements of' damage which have been presented to you in this case; one is the diminution of rental value, and the other is the diminution of the proper price which the plaintiffs claim would have been got at a sale for the fee of the property but for the interposition of the elevated railroad.” Against the protest of the defendant, the trial judge instructed the jury to award to the plaintiffs damages for “ such loss of fee value of the property which they sold as was caused by the wrong doing of the elevated railway in this case.” In the charge to the jury no mention was made of two causes of action. On account of the statute of limitations, the plaintiffs’ recovery of rental damages was limited to the period between July 19,1878, and October 4,1883, the time of the sale of the premises by the plaintiffs. The jury was' instructed to render a general verdict, and to make in their discretion certain suggested special findings, as follows:

“ The jury are to find what are the damages, if any, caused by defendant’s railroad, subdivided as follows:

“ 1. For the period from July 19th, 1878, to December 20th,, 1882, with interest, if allowed, from July 19th, 1884, to date; the interest to be stated separately.

“ 2. For the period from December 20th, 1882, to October 4th, 1883, with interest, if allowed, from July 19th, 1884, to date; the interest to be stated separately.

“ 3. The amount of loss, if any, to the fee value by the sale of October 4th, 1883- with interest from July 19th, 1884, to date, if allowed; the interest to be stated separately.

“ 4. General verdict to be the aggregate of the above.”

The jury, after deliberation, rendered the following verdict in writing:

The jury make answer to the special questions submitted to them as follows:

1. For the period from July 19th, 1878, to Dec. 20th, 1882, with interest, if allowed, from. July 19th, 1884, to date, the interest to be -stated separately, three thousand two hundred and eight dollars, with interest from July 19th, 1884, to date, $1,069.

2. For the period from December 20th, 1882, to October 4th. 1888, with interest, if allowed, from July 19th, 1884, to date, the interest to be stated separately, Four hundred and twenty-six dollars, with interest from July 19th, 1884, to date, $142.

8. The amount of loss, if any, to the fee value by the sale on October 4th, 1883, with interest from July 19th, 1884, to date, if allowed, the interest to be stated separately, Thirty-six hundred and thirty-four dollars, with interest from July 19th, 1884. We have not allowed any damages as to rental value.

4. General verdict to be the aggregate of the above, or thirty-six hundred and thirty-four dollars, with legal interest from July 19th, 1884; total, $4,845.

Counsel for defendant moved upon the minutes of the court and upon the verdict as rendered for judgment in favor of the defendant, upon the ground that the verdict being against the plaintiff upon the question of damages to rental value, and damages to fee value not being recoverable in this action, the defendant was entitled to judgment. This motion was denied and exception taken. On this verdict judgment was entered awarding the plaintiff the sum of $5,333.83 damages, interest and costs. Subsequently an order was entered denying the defendant’s motion for judgment, which order is before us on appeal in connection with the appeal from the judgment.

Section 1187 of the Code of Civil Procedure provides as follows : “ Where the jury find a general verdict, the court may instruct it to find also specially upon one or more questions of fact stated in writing. The special verdict or special finding must be in writing, and it must be filed with the clerk and entered in the minutes.”

The submission of the foregoing special questions seems to have been fully authorized, and the practice pursued by the learned trial judge perfectly regular.

Section 1188 of the Code provides that “ Where a special finding is inconsistent with the general verdict, the former controls the latter, and the court must render judgment accordingly.”

If in the finding of a jury special matter follows or is followed by general matter, the verdict will be judged according to the special matter. Fraschieris v. Henriques, 6 Abb., N. S., 251. The verdict herein was a general one in favor of the plaintiff, and was controlling except so far as the special findings were inconsistent with it. Code, § 1188; U. S. Trust Co. v. Harris, 15 Super. Ct., 75. The special findings herein were inconsistent with the general verdict, and legally required the entry of a judgment in favor

The plaintiffs have no personal right of action for damages sustained by their mother, Hester Paret, in her lifetime, and the trial judge erred in holding that the plaintiffs, in their capacity of next of kin, were entitled to recover such damages. The- devisee does •sot acquire by the devise the right to recover for injury to the rental value of real estate which happened prior to the passing of title under the devise. The right of action is a personal asset, accruing to the owner upon the happening of the injury. The executors or administrators of Hester Paret were entitled to recover the damages sustained during her lifetime, and to enforce their payment by action, if necessary, as part of the estate to be administered by them. The plaintiffs were without authority to maintain a suit for the recovery of such damages, while the right of action therefor was vested in the executors or' administrators. Griswold v. Met. El. Ry. Co., 122 N. Y., 102 ; 33 St. Rep., 232 ; Shepard v. Man. Ry. Co., 117 N. Y., 442 ; 27 St. Rep., 705 .

The most that the plaintiffs herein would be entitled to recove» for damage to the rentel value would be such loss as was sustained by reason of the wrongful acts of the defendant between December 20, 1882, the date of Mrs. Paret’s death, to October 4, 1883, the date when they sold the property, a period of less than ten months. But this error is unimportant, because of the following finding of the jury: “ We have not allowed any damages as to rental value."

The second alleged cause of action, constituting, as we have already shown, not an additional cause of action but only a separate item of damage, presents a claim for loss of fee or selling value, which cannot be recovered in a common law action for money only. Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 98 ; Tallman v. Met. El. Ry. Co., 121 id., 119 ; 30 St. Rep., 491 ; Pappenheim v. Met. El. Ry. Co., 40 id., 445.

In the last cited case, the rights of persons in the situation of these plaintiffs is very thoroughly discussed. The court of appeals, Peckham, J., say as follows: “ Í have thus far referred to the case of the vendee for the purpose of inquiring what rights appertained to him as the present owner of that property. But the argument in favor of the vendor, who owned the .property when the road was built, and who sold his land in a depreciated market, caused by the wrongful acts of the defendants, is not to my mind very strong. In the first place, he had his right of action to recover for all damages caused by the trespass up to the time of the commencement of his action, and the subsequent conveyance of the land would not in any way affect that right. If he desired to restrain its further continuance or to recover for the permanent damage caused, he could, while owner, commence and maintain his action in equity. In that action he would obtain full relief. If he chose to sell, instead of using the remedies which the law gives him, that is a matter, legally speaking, of his own choice. The defendants did not compel or limit or restrain such sale.

It is clear that the alleged loss sustained by the plaintiffs, upon the sale of the property in question, did not fall within the legal measure of damages in this case. As to the only claim of damages upon which the plaintiffs were entitled to recover, the jury found against them, and the claim which the jury found in their favor, the law declares not to be within the legal measure of damages. This situation demanded from the trial judge the direction that the judgment be entered upon the verdict in favor of the defendant. This the learned trial judge did not do.

For the reasons above indicated, the order denying defendant’s motion for judgment in its favor should be set aside, and judgment entered for the defendant upon the verdict The appeal from the judgment is dismissed, without 'costs.

We do not overlook the fact that this disposition of the case will cause the records to show two judgments herein, to wit: the one entered upon trial in favor of the plaintiffs, and the judgment here directed. There was no motion before the trial judge by the defendant to set aside the first judgment. We do not think this court should take action in respect to that judgment, upon its own motion, but deem it proper to say that this decision is without prejudice to the defendant to move at special term to set aside said judgment.

We think this decision should be without costs, since it occurs that had the action been properly tried, and an intelligible verdict rendered, a recovery for past damages, covering a period of about ten months, to wit: from December 20th, 1882, to October 4th, 1883, would have resulted.

Sedgwick, Ch. J., concurs.

(dissenting).—I agree with my associates that there can be no recovery in this action for damages other than those to rental value between December 20, 1882, and October 4, 1883. The judgment should therefore be reversed, and a new trial ordered, with costs to defendant to abide the event.

The order denying defendant’s motion for judgment upon the verdict was properly made. The special findings were inconsistent The first ánd second allowed damages to rental value, and the third contained a statement that no damages to rental value had been allowed.

The verdict contains contradictory statements, and should not have been accepted by the court.

No judgment should have been ordered upon it.