
    Brooklyn Elevated Railroad Company, App’lt, v. Isaac Lewis et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 13, 1895.)
    
    1. Damages — Elevated railroad.
    If the enhancement in value of property in the vicinity, including that on the street on which the road is constructed, due to the elevated road, is sufficient to equal the injury caused by the road, the property owner is not entitled to more than nominal award.
    2. Appeal — Award—Elevated railroad.
    Where the case presents a fair question of fact and it does not appear that the commissioners erred in the principle, on which they made their determination, the award will stand.
    Appeal from an order, setting aside the report of the commissioners, and directing a second appraisal before the new commissioners.
    
      Hoadly, Lauterhach & Johnson, for app’lt; David Leventritt, for resp’ts.
   Per Curiam.

It is settled by authority that an award by commissioners will not be set aside for inadequacy or because excessive unless the award is palpably wrong in either respect. This case cannot be said to present such an aspect, though we might have differed from the commissioners in their determination. The building, a flat house, was erected long after the construction of the railroad. It cost the respondents about $18,500. At the time of the hearing before the commissioners it was fully occupied, at a gross rent of over $1,900 a year. Experts on both sides testified that ten per cent, of the value was a fair rental on such property. The rent received at the time of the hearing would tend to show that there had been no depreciation in value. The learned judge at special term considered it conclusive evidence of damage that the gross rent received for two previous years was about $1,575 a year. But he fell into this error: The ten per cent, estimate agreed on by all the witnesses was of gross rental values, not allowing for vacancies and loss of rent, which was estimated to be about ten per cent. With this deduction there would appear no great discrepancy between the rents received and the estimated rental value. The construction and operation of an elevated railroad must create some discomfort to occupier of residential property, as assumed by the judge below, may be conceded, but that is not conclusive as to the right to a substantial award. There is evidence in the case to show that property in the vicinity, including that on the street on which the road is constructed, had enhanced in value, and that in part, at least, it is due to the elevated road. If this was sufficient to equal the injury caused by the road, the property owner was not entitled to more than nominal award. The case, therefore, presented a fair question of fact, and. the award should stand, it not appearing that the commissioners erred in the principle on which they made their determination.

The order appealed from should be reversed, and the report confirmed, with ten dollars costs and disbursements. The appeal denying appellant’s application to resettle, order should be dismissed, with ten dollars costs and disbursements.  