Mooney v. New York Elevated Railroad — 52 N.Y. St. Rep. 256

Majority

p. 256

Rosanna Mooney, Resp't, v. The New York Elevated Railroad Co. et al., App'lts.

(New York Common Pleas, General Term,

Filed April 10, 1893.)

Headnote

Railroad—Elevated—Value of easements.

A refusal of the referee in an action against an elevated railroad to find, as fact, that the easements pertaining to plaintiff’s land, taken for the use of the railroad, aside from any damage to the land, have in themselves only a nominal value, is error.

Appeal from a judgment of this court, entered upon the report of a referee.

p. 257

The action was to restrain the operation and maintenance of a branch of the elevated railroad running in front of plaintiff’s premises, No. 310 East Thirty-fourth street, between First and Second avenues, in the city of New York, and for damages. The judgment granted the relief prayed for, unless the defendant, within ninety days, paid plaintiff $2,500, assessed as damages to the fee value of the property caused by the railroad. Damages in $1,756 was also allowed for loss of rents from October 20, 1882, to March 10,-1892.

J. Aspinwall Hodge, Jr., for resp't; R. L. Maynard, for app'lts.

The judgment will have tobe reversed for error the refusal of the referee to find, as easements pertaining to the plaintiff’s land, taken for the uses of the railroad, aside from any damage to the land from the said taking, have, in themselves, only a nominal value. Bookman v. N. Y. El. R. R. Co., 50 St. Rep., 703 ; Sutro v. Met. El. Ry. Co., id., 701. The exception to this finding has been discussed in the <cases of Cook and Kahn against the same defendants, herewith decided.

The observations which we have made in the Kahn case, above ' referred to, apply equally to the case before us, so far as the questions of fact are concerned. The plaintiff here furnished evidence of the rentals obtained from the property before and after the construction and operation of the defendants’ road. While the testimony as to prior rentals does not fix with certainty the year in which those rentals were received, still there was a basis for a competent conclusion that the plaintiff had been actually damaged by a diminution of rentals, traceable to the elevated railroad, and by a loss of fee value, as indicated by the depreciation of rents, and that the railroad had not been of the slightest benefit to her property. The estimate which the referee placed upon damages to the fee value and to the rental value were by no means extravagant, and appear to be justified by the evidence. But, for the error pointed out, a new trial must be granted.

Judgment reversed, new trial ordered, with costs to abide the event.

Bischoff and Pryor, JJ., concur.