Keene v. Metropolitan Elevated Railway Co. — 61 N.Y. St. Rep. 276

Majority

p. 276

Sara J. Keene, Resp’t, v. Metropolitan Elevated Railway Company, App’lt.

(Supreme Court, General Term, First Department,

Filed July 13, 1894.)

Headnote

'Damages—Elevated railway.

Where some of the apartments in an apartment house front on the street occupied hy an elevated road, and others front on a cross street, damages cannot he awarded for latter apartments.

Appeal from a judgment in favor of the plaintiff.

Brainard Tolles, for app’lt; J. A. Murray, for resp’t.

—This action was brought to obtain an injunction against the operation of the defendants’ railroad, or the payment of - damages because of the interference with easements in the street in front of the plaintiff’s premises. The premises in question are situated at the southwest corner of Finth avenue and Fifty-seventh street, having a frontage on the avenue of 125 feet and on the street of 100 feet. The defendants have constructed and maintained and are operating an elevated railroad on Finth avenue. The building upon the premises in question was constucted in 1880 and 1881, and was intended for use, and is now used, as an apartment house. The building is divided into five distinct and unconnected apartments on each floor except the first and eighth floors. These apartments are parallel with Finth-avenue, except one, which fronts on Finth avenue, and runs across the rear of the other apartments. The apartment at the corner of Finth avenue and Fifty-Seventh street, and the apartment fronting on Finth avenue in the rear of the other apartments, are the only ones fronting on Finth avenue. In the award made in this action damages were allowed for alleged injuries to the apartments which had no frontage on Finth avenue as well as to the two which had such frontage, and the question presented on this appeal is whether such an allowance can be justified. It seems to us that it cannot. The. three apartments which fronted on Fifty-Seventh street had no easements of light, air, and access upon Finth avenue. While damages have been allowed-where premises are so situated that they are to be considered as a single parcel, although the total frontage might not be upon the street occupied by the elevated railway, yet, where such premises are improved by buildings distinct within themselves, some of them having no frontage upon the avenue occupied by the railroad, it is difficult to see upon what, theory an award for the destruction of easements upon the a venue upon which such buildings have no frontage can be predicated. In the case at bar the three apartments have no frontage upon Finth avenue, the street occupied by the railroad. They therefore can have no easement in the light, air, and access upon such avenue, as such easements have been held to belong only to the abutting owner. The apartments in question, therefore, do not seem to come within the class to which relief has been granted H actions of this character. It has been urged that because of the fact of there being a unity of construction in the building and

p. 277

unity of ownership a different rule should obtain. But it is apparent that, notwithstanding the unity of construction and unity of ownership, these premises are occupied as distinct and separate buildings, just as much as though there was no architectural unity and there was a division of ownership. It is difficult to see how mere-architectural unity or single ownership can give an easement upon a street where none would exist even if the occupation was the same, and the interior arrangement were the same, but the exterior appearance showed diversity. We think, therefore, under the findings of the learned court at special term, that the apartments fronting upon Fifty-Seventh street had no right to enter into the consideration of a recovery.

The judgment should be reversed, and new trial ordered, with costs to appellants to abide the event

All concur.