N. Y. National Exchange Bank v. Metropolitan Elevated Railway Co.

Headnote

Elevated railroads—damage by to easement in street attached to leasehold property ; rule as to provision in judgment permitting purchase of easement by railroad companies.

Appeal by defendants from a judgment entered upon the decision of the court at special term.

This action was brought to obtain equitable relief upon the ground that the plaintiff owns a leasehold interest in certain property upon the southwest corner of Chambers street and College Place, in the city of New York, and that attached to said property there is the usual easement in said streets ; that the Metropolitan Elevated Railway Co. constructed an elevated railroad, including a station, in front of the said property, and operated upon the structure of said railroad a steam railroad from June, 1878, to May, 1879 ; that at the time last mentioned the said road was leased by said company to the Manhattan Railway Co.; that since said time the said road has been continuously operated; and that such construction and

operation materially abridged plaintiff’s easement in said streets, in consequence of which the plaintiff sustained a depreciation in the rental value of said property and specific losses of rent.

The Court at General Term (after stating the facts as above), said :—“ The easement in question has its origin in a cession by the Trinity Church Corporation of the streets named, to the city of New York for street purposes. In this respect the case at bar is identical with the case of Glover v. The Manhattan Railway Co. (51 Super. Ct. 1). The evidence given at the trial established a cause of action in the plaintiff upon the grounds above stated and within the principle of the decisions in Story v. The N. Y. Elevated Railroad Co. ( 90 N. Y. 122 ); Taylor v. The Metropolitan Elevated Railway Co. (50 Super. Ct. 311); Glover v. The Manhattan Railway Co. (51 Super. Ct. 1) ; Drucker v. The Manhattan Railway Co. (51 Super. Ct. 429); and Ireland v. The Metropolitan Railway Co. (52 Super. Ct. 450). Unless, therefore, it appears that some error was committed in the course of the proceedings, or in the rendition of the judgment as entered, the judgment appealed from should be affirmed. Under the rules laid down in the cases of Drucker and Ireland, there was no error in the admission of evidence. So no error appears in the exclusion of testimony. Aside from other considerations, both the rapid transit act (Laws 1815, ch. 606, § 20), and the general railroad act as expounded in 29 Hun, 1 , and 35 Hun, 260 , prohibit any allowance or deduction on account of any real or supposed benefits flowing from the construction of the railroad. The judgment rendered awards to the plaintiff, (1) the sum of $112.80, payable by the Metropolitan Elevated Railway Co., being the amount of the depreciation of rental value sustained from June, 1818, to May, 1819, with interest and costs ; (2) the sum of $4,346.05, payable by both companies, being the amount of the depreciation of rental value sustained from May, 1819, to the time of the trial, with interest and costs ; and (3) an injunction to prevent

the further operation of the road from and after a future day named. This award of damages is sufficiently supported by evidence, and if, therefore, there were nothing more in the judgment, the case would be completely covered by the decision of the case of Glover. The judgment, however, further provides that the defendants may buy so much of the easement of the plaintiff, as was taken for the purposes of the railroad, for the sum of $8,000, and that in case of such purchase the plaintiff shall make proper conveyance and there shall be no injunction. The findings show that, in determining the value of so much of the easement as was taken, the court refrained from considering, as an element of damage, the annoyance caused by noise, or any annoyance other than what constituted an interruption to the easement of light, air and access, in the proper acceptation of the term. And they further show that the sum of $8,000 represents the depreciation of the plaintiff’s property at the time of the trial; that, in arriving at that conclusion, proper regard was had for the specific loss of rental value for which a money judgment was given, and that the case is clearly distinguishable from that of Ireland, in which the verdict of the jury was inconsistent. The case, as a whole, also shows that there was sufficient evidence before the court to enable it to arrive at that conclusion. If more light could have been shed upon the case, the defendants as well as the plaintiff might have procured it. Exact and exhaustive particularization was not necessary. Upon all the facts and circumstances disclosed, it sufficiently appears that the judgment, as given, rests upon a solid as well as discriminating basis, and that, inasmuch as there is no obligation on the. part of the. defendants to pay the $8,000, the provision enabling them to purchase for that sum, is rather in the nature of a privilege. Moreover, the decision pursuant to which the judgment was directed to be entered, expressly provided that any party to the action should have leave' to move at the foot of the judgment for further direction as to the enforce

ment of the judgment. If, therefore, the defendants, or either of them, desired some additional equitable provision which the court might have made for their benefit, they should have made a proper request for it'.

“As the case stands no error appears in the record, and consequently the judgment appealed from must be affirmed, with costs.”