Page v. Metropolitan Elevated Railway Co. — 62 N.Y. St. Rep. 502

Majority

p. 502

Caroline Grace Page et al., Resp’ts, v. The Metropolitan Elevated Railway Company et al., App'lts.

(New York Common Pleas, General Term,

Filed November 5, 1894.)

Headnote

Appeal—Findings.

Where the general term, has the facts of the case before it, support for the conclusions of law may be sought upon the evidence, unless the trial court or referee has, by an express finding or ruling, concluded questions, essential to the judgment, against the respondent.

Appeal from a judgment of the court at equity term.

Davies, Short & Townsend (Julien T. Davies and Brainard Tolies, of counsel), for app’lts; William N. Cohen and William H. Paige, Jr., for resp’t.

But one point is urged upon this appeal, and this relates to the court’s award of fee damage in view of the findings of fact, which, it is claimed, render the jndgment erroneous upon any method of computation. Upon the evidence adduced the amount of damage was to be arrived at through a comparison between the value of the premises in 1873 and their value at the present date, making allowance for wear and tear of the building, and holding in view the general increase of 50 per cent, upon land values in the vicinity.

It was, perhaps, also possible to arrive at a conclusion in this regard by computiug the difference between the rental value at the present time and a nominal rental value, availing of a proven ratio of rental to fee values. The arguments of counsel are

p. 503

based respectively upon a divergence as to their basis of calculation by either method, and this is principally due to the fact that the finding of the court in certain instances declared the values to be “ about ” a given sum, which language the appellants take to inted an express finding of an exact amount, while the respondents contend that a larger value, as proven, may well be taken as found. Where the court at general term has the facts of the case before it, all the evidence being contained in the appeal book, support for the conclusions of law may be sought upon the evidence, unless the trial court or referee has, by an express finding or ruling, concluded questions essential to the judgment against the respondent. Paisley v. Casey, 41 St. Rep. 339 ; Porter v. McGrath, 41 Supr. Ct. R. 84. The finding that the value of the premises in the year 1873 was “ about $15,000,” the exact words of defendants’ expert, is not in conflict with the evidence that the 'precise sum paid as consideration for the sale of the property at that time was $15,250, which would seem to have been the basis upon which the court’s computation was founded. Upon this basis the award of fee damage of $1,400 finds support and in no way is in conflict with the other findings made. The evidence shows that the value of the land at the period considered could be taken as $8,000, leaving the sum of $7,250 to represent the value of the building. Deducting from this last sum the decrease in value by reason of wear and tear,- as shown to be $1,500, and allowing 50 per cent, for increase of land value, we have the following result:

Original value of property (1873)............$15,250

Yalue of land (1873)...................... 8,000

Yalue of building (1873)................... 7,250

Building, with deduction................... $ 5,750

Yalue of land and increase.................. 12,000

Normal value......................... $17,750

Present value......................... 16,125

Decrease..............................$ 1,625

which sum, less a reasonable deduction for benefits, as found generally by the court, would justify the finding, as to damage, which was made.

The judgment should be affirmed with costs.

All concur.