Bischoff v. New York Elevated Railroad — 46 N.Y. St. Rep. 863

Majority

p. 863

Henry Bischoff, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

(New York Superior Court, General Term,

Filed May 9, 1892.)

Headnote

1. Railroad-Elevated—Benefits—Proximity op station.

The question whether great numbers of people being drawn to the vicinity of plaintiff’s premises by the proximity of a station would constitute a special benefit to him is one of fact for the judge, and his refusal to so find should not be disturbed.

2. Same.

Where the premises in question have a double frontage, it is not error to refuse to find that the portion facing on the other street was a separate building with no appurtenant easements on the street occupied by the railroad,where it is not shown that between the two so called separate buildings there was any separating wall so solid and without openings as to cut off from either one the advantages of light and air from the other street.

3. Same—Damages—Evidence—Decrease op rents in street.

Evidence of a decrease in rents of neighboring property in the same street is admissible, although such property is a hotel and dissimilar in structure and kind of occupation.

4. Same

A witnesss was asked on cross-examination as to the value of plaintiff’s premises, and gave it. stating that another building had sold for 825,000 more and that plaintiff’s was the largest; that he made such sum the damage done by the railroad. On re-direct he was asked how much he allowed for such damage, and replied from §30,000 to §35,000; that he thought the property would sell for §100,000 if the railroad was not there. Held, that the answer was not irresponsive, and was competent in reply to the evidence drawn out by defendants.

5. Same—Reduction op bent.

Plaintiff testified that he lowered the rent on an outstanding lease because he could not get the rent in its full amount from the tenant. Held, that the judge was justified in finding that his action was due to business-expediency or necessity, and was not negligent or without cause.

Appeal by defendants from judgment entered on findings, etc., at special term.

Brainard Tolles, for app’lts; Edward A. Hibbard and W. G. Peckham, for resp’t.

The action is to restrain defendants from maintaining their elevated road and from running their cars thereon in front of plaintiff’s premises.

It is argued for the appellants that the judge incorrectly refused to find as requested in the fiftieth and fifty-first proposed findings of fact. These are: There is a station of defendants’ railroad near plaintiff’s premises which is daily used by great numbers of people, some of whom pass through Park Row in front of said premises, and, the existence of staxion and railroad and the great numbers of people thereby drawn to the vicinity of the plaintiff’s premises constitute a special benefit to said premises.

The first request has no importance. It relates to some people. That some people passed the plaintiff’s premises could not affect the value of those premises. Whether great numbers of people being drawn to the vicinity of plaintiff’s premises would constitute a special benefit to them would depend upon the likelihood of their becoming customers at plaintiff’s premises, or, perhaps, purchasers of them. Whether there would be such advantage would again depend upon the occupations, means and the places of the home and business of the passers by. The question is of fact for the judge, and his refusal to find should not be disturbed. This is perceived in the description of the crowds candidly given by the counsel for the appellants. He says : “ Great numbers of persons employed in the factories, warehouses and places of business in this part of the city use these stations every day and usually pass through some portion of Park Row in going to or from the station.”

The learned court took into consideration fully the advantages or benefits conferred on the property ,by the railroad. And except in rare cases it is always done where the market value of the abutting land is proven, for the advantages, general or special, have gone into the land and affected its value.

The counsel for the defendants asked that this finding of fact be made. It was “ 62nd. The portion of plaintiff’s premises known as No. 20 Duane street constitutes a separate building with a separate entrance, separate walls and no frontage on Park Row. No easements over Park Row are appurtenant.” The evidence does not seem to show that between the two so-called separate buildings there is any separating wall, so solid and so without openings that the Duane street building is cut off from the advantages of light and air that are derived from Park Row. At ■one time the easements from Park Row were appurtenant to the Duane street part of the property. So far as the latter is concerned, there is no proof that it has been extinguished. The relation of the buildings is such that for instance the first floor of 20 Duane street is a continuation of a floor in No. 1 Chambers street. Beyond this No. 20 Duane street, in its front, had an easement which was not limited to Duane street, but extended easterly to Park Row. The judge would not have been justified in finding as requested. Stevens v. The N. Y. E. R. R. Co., 40 St. Rep., 632 .

The plaintiff was allowed to prove what had been the rents of Sweeny’s hotel from 1879 to the present time. That hotel was a

p. 865

short distance from the plaintiff’s house. Questions on this subject were objected to on the ground that they were indefinite and irrelevant, and did not relate to the premises in question, and were not within the issues in this action. It was within the scope of the action to ascertain what the effect of the railroad had been upon Park Bow, either in decreasing or increasing rental or fee values. There was no special objection taken because the rent was a matter of bargaining between others than the parties to this suit. In these suits evidence is often allowed without objection upon a direct examination. For want of the particular objection the action of the court should be sustained. The dissimilarity of the hotel from the premises in suit in respect of structures and kind of occupation was immaterial to the inquiry of whether, in a course of years, rent on Park Bow had increased or decreased.

The plaintiff called as a witness one Harnett, who testified as to the values of real estate. On cross-examination he was asked by defendants’ counsel, Can you give the value of Mr. Bischoff’s building ? The answer was that he supposed the building to-day would sell for about $60,000 or $65,000. He further testified that another building in Park Bow sold for $85,000, and that plaintiff’s building was a little larger than the other. Defendants’ counsel then asked:

‘‘ Q. Is it on account of the difference in the building that you make the $25,000 difference?” The answer was, ‘‘I make the damage the elevated railroad has done.”

On re-direct examination plaintiff’s counsel asked:

'■ Q. In estimating for counsel for defendant you said you allowed so much for damage from elevated road to plaintiff’s property. How much did you allow ? ” The question was objected to as asking for the opinion of the witness as to the damage. The court also asked, how much did you allow in the estimate already given? The witness answered: “I stated from $60,000 to $65,-000. I figured the damage done from $30,000 to $35,000. In other words, I think the property would sell for $100,000 if put up at auction to-day, if the elevated road was not there. That is the way I made up my estimate.” The defendants’ counsel asked that the latter part of the answer be stricken out, as irresponsive and incompetent. The plaintiff could not properly be prevented asking the particulars of the evidence drawn out by the defendants. There was no new subject alluded to. He had already given in substance what he believed the property to be worth without the railroad, for he had said it was worth then $60,000 to $65,000, and $25,000 damages had been done. His last answer increased the amount. That would afford matter for observation upon the witness’ testimony, but would not make the testimony incompetent. Whatever the purpose of the defendants in asking the question, the plaintiff had a right to examine to frustrate that purpose if possible. And a failure on the part of plaintiff to accomplish this would not make questions they had asked incompetent.

p. 866

The reduction of rent on an outstanding lease was not negligent or without cause. The plaintiff testified that he could not get the-rent from the tenant in its full amount, apd therefore he lowered it to sixty dollars a month. The judge was justified in finding that the plaintiff’s action was due to business expediency or necessity in endeavoring to get the largest rent that could be got.

The action of the judge in giving damage from 1884, when the plaintiff acquired the property, and through three years of a then pending lease, is in accordance with the decision of Korn v. N. Y. E. R. Co., 39 St. Rep., 322 ;

Other exceptions have been examined and do not call for a reversal of the judgment.

Judgment affirmed, with costs.

Sedgwick, Ch. J., Dugro and Gildersleeve, JJ., concur.