
    John P. Huggins et al., Resp’ts, v. The Manhattan Railway Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    Railroad—Elevated—Damages—Chabge.
    In an action against an elevated' road to recover damages sustained by reason of its maintenance, the court charged that plaintiffs were entitled to recover the damages caused thereby, “ regardless of any benefits which defendants may claim resulted to said premises generally in company with other premises not abutting on the street,” but only peculiar benefits; and that the damages to be offset must be limited to such as are shown to be special to property abutting on the street on which the road is erected, and not such as are general and shared in by all other property in the neighborhood not abutting on said street. Held, error.
    Appeal from judgment and from order denying new trial. Action at law for damages from the maintenance and operation of defendant’s elevated railroad on the street in front of plaintiffs’ premises. Verdict of $9,000 for such damages between 7th April, 1881, and 7th April, 1887.
    
      Guernsey Sacked, for resp’ts; Brainard Tolles, for app’lt.
   Pryor, J.

The appellant impeaches the judgment for error in the charge and in the admission of evidence ; but as we are of the opinion that the first ground of reversal is sufficient, the second may be dismissed from consideration.

The quantum of damage sustained by plaintiffs from the invasion and appropriation of their easements in the street by defendant’s railroad was the subject of strenuous controversy between the parties, and was submitted to the judgment of the jury upon evidence of an extremely uncertain and indeterminate character. Obviously, therefore, it was of capital importance to a correct solution of the question that the presiding judge should propound to the jury the true criterion by which to ascertain the amount of that damage.

Nevertheless, the learned judge instructed the jury that “the plaintiffs are entitled to all damages caused by the alleged interference of the defendant with their easements .by the maintenance and operation of the railroad in the street, regardless of any benefits which the defendant may claim resulted to them, or to said premises generally, in company with other premises not abutting on the street through which said road is maintained, bdt to be offset by peculiar benefits.” And again, that “ the benefits to the plaintiffs’ premises which the defendant is entitled to offset against the damages which the plaintiffs sustained, if any, by the defendant’s illegal acts, must be limited to such as are shown by the evidence to be ■special to the property abutting on the street on which the road is erected, and not such as are general and shared in by all other premises in this neighborhood not abutting on the streets through which the Q'oad runs.”-

Thus, in the most precise and peremptory terms, the learned trial judge repeatedly admonished the jury not to abate anything of their award to the plaintiffs on account of an enhancement in the value of their premises from the presence of the railroad, if such enhancement of value was likewise imparted to other property not situated on the street.

That the instruction submitted to the jury an erroneous rule of damages, is adjudicated by the court of appeals in Bohm v. M. E. R. R. Co., 129 N. Y., 576; 42 St. Rep., 247, and in Becker v. M. E. R. Co., 131 N. Y., 509; 43 St. Rep., 726.

Upon the record we are unable to affirm of the instruction that it was of no effect on the verdict or detriment to the defendant. Moore v. N. Y. E. R. R. Co., 130 N. Y., 523,529 ; 42 St. Rep., 588. By twice procuring the court to exclude from consideration by the jury and from credit to the defendant the value of general benefits to their property, the plaintiffs emphasized their appreciation of the influence of the instruction upon the magnitude of the verdict. And as the case contains evidence to justify an inference -that the presence of the railroad operated a general enhancement of value in property in the vicinity but not upon the street, the conclusion is that the jury, obeying the instruction of the court, declined to reduce the amount of damages by an allowance for such common enhancement of value in plaintiffs’ premises. Newman v. R. R. Co., 118 N. Y., 623; 30 St. Rep., 36; Purdy v. R. Co., 36 St. Rep., 45; Welsh v. R. R. Co., 16 Daly, 515 ; 35 St. Rep., 35.

Judgment reversed and new trial ordered, costs to abide event.

Daly, Ch. J., and Bischoff, J., concur.  