
    JAMES H. JONES, Appellant v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et at., Respondents.
    
      Damages, insufficiency of, verdict set aside for—Costs of trial and of appeal when to be costs in the action and to abide the event—Easements, cosls, when title to is put in issue and the issue is material; a verdict for six cents for plaintiff carries costs.
    The plaintiff, an abutting owner, had for four years suffered annoyance from steam and smoke sent out by defendants’ locomotives, his light had ■ been out off, the percentage of which was proved by a competent witness, and evidence was given by a witness (his agent) as to loss of rentals; none of which matters were controverted; the jury under a correct charge rendered a verdict for the plaintiff for six cents damages. Held, ■ that the verdict should be set aside for insufficiency of damages and a new trial ordered.
    The charge being correct and the defendants not at default, Held, that the costs of the trial and of the appeal should be ordered to be .costs in .the action and to abide the event.
    The complaint alleged that the plaintiff had certain rights in Trinity Place and that those rights constituted an easement in the bed of the street which attached to his abutting property and that defendants had taken no steps to condemn the -easement. These allegations were denied by the answer. Held, that plaintiff’s title to the easement, which is real estate, was thus put in issue; which issue was a material one, and that ■ consequently a verdict for plaintiff of six cents damages carried costs.
    Before Sedgwick, Ch. J., and McAdam, J.
    
      Decided May 4, 1891.
    Appeal by plaintiff from a judgment in favor of defendants entered on a verdict for plaintiff for six cents damages * from an order denying plaintiff’s motion for a new trial on the ground that the verdict was for insufficient damages, and from an order refusing to allow the costs of the action to the plaintiff.
    The facts sufficiently appear in the opinion.
    
      Olin, Rives & Montgomery, attorneys, and G. L. Rives, of counsel, for appellant,
    on the question of the power of the general term to set aside the verdict, cited, Code Civ. Pro., § 1347; Victory v. Foran, 56 Super. Ct. 507; Hynes v. McDermott, 7 Abb. N. C. 98; Sackett v. Breen, 3 N. Y. Supp. 473.
    On the question as to the damages being so insufficient as to call for setting aside the verdict, they cited Clark v. Mechanics’ National Bank, 8 Daly, 481, 503 ; Collins v. A. & S. R. R. Co., 12 Barb. 492 ; Richards v. Sandford, 2 E. D. Smith, 349; Robbins v. Hudson River R. R. Co., 7 Bosw. 1; McDonald v. Walter, 40 N. Y. 551; Lough v. Bomaine, 36 Super. Ct. (4 J. & S.) 332 ; Platz v. City of Cohoes, 8 Abb. N. C. 392; Phillips v. S. W. Railway Co., 5 Queen’s Bench Div. 78; Cowles v. Watson, 14 Hun, 41; O’Shea v. McLean, 15 Civ. Pro. R. 69 ; Smith v. Ditman, 34 State Rep. 303 ; Lahr v. Metropolitan Elevated Railway Co., 100 N. Y. 288 ; Sedgwick on Dam. 7th ed. 610 ; Drucker v. Manhattan Railway Co., 106 N. Y. 157; Tall v. Metropolitan Elevated Railway Co., 121 N. Y. 119.
    On the question as to the plaintiffs being entitled to costs they cited § 3228, Code Civil Procedure ; Niles v. Lindsley, 1 Duer, 610; Dempsey v. Hall, 35 Supr. Ct. 201; Hubbell v. Rochester, 8 Cow. 115 ; Radley v. Brice, 6 Wend. 539 ; Powers v. Conroy, 47 How. 84; Dinehart v. Wells, 2 Barb. 432; Powell v. Rust, 8 Ib. 567; Kelly v. N. Y. & Manhattan Beach R. R. Co., 19 Hun, 363, affirmed in 81 N. Y. 233; Leprell v. Kleinschmidt, 112 N. Y. 364; Boyle v. Lawton, 3 How. N. S. 444; Horton v. Jordan, 32 State Rep. 920; DeGraff v. Hoyt, 4 T. & CD. 348; Green v. Canandaigua, 30 Hun, 306 ; Broadway v. Scott, 31 Ib. 378; Crowell v. Smith, 35 Ib. 182; Davies v. William, 13 Civ. Pro. R. 138; Dunster v. Kelly, 110 N. Y. 558 ; Shepard v. Manhattan Railway Co., 117 N. Y. 442 ; Mitchell v. Met. El. R. Co., 31 State Rep. 625; Dean v. Met. El. R. Co., 119 N. Y. 540; Bruen v. Manhattan R. Co., N. Y. Law Journal, 15 January, 1891. They then cited as showing the converse of the rule laid down in above cases, viz.: that where the allegation of title is immaterial .... no claim of title arises on the pleadings. Learn v. Currier, 15 Hun, 184; Moody v. Steele, 3 State Rep. 269; Bailey v. Daugler, 20 Ib. 549; Quinn v. Winter, 22 Abb. N. C. 462; reversed by general term City Court, 25 State Rep. 851, last decision reversed and special term decision affirmed by Court of Common Pleas in 28 State Rep. 178. . They then referred to and commented on Rathbourne v. McConnell, 20 Barb. 311; 21 N. Y. 466.
    Upon the question as to the terms of the judgment to be entered on granting a new trial they argued:
    
      The court may reverse the judgment below upon any one or more of the following grounds: (a) Error on the trial. (b) Inadequacy of damages, etc. (c) Wrong allowance of costs'. (A) If the judgment be reversed for error on the trial, then the ordinary rule should prevail and a new trial should be ordered with costs to abide the event. (B) If the court thinks the verdict should be set aside, it may, in its discretion adopt one or two courses. (1) It may order a new trial, and in that case the practice in this court and the Court of Common Pleas seems to be to direct costs to abide the event. Robbins v. H. R. R. R. Co., 7 Bosw. 1; Smith v. Dittman, 34 State Rep. 303. (2) The court may, instead of directing a new trial, affirm the judgment on condition that the defendant consent that damages be fixed at a sum deemed reasonable. This practice is declared to be proper in this state in Richards v. Sandford, 2 E. D. Smith, 349. This course is in analogy with the well-established practice where damages are decided to be excessive. In the present case, the court have all the facts before them and are constantly in the habit of deciding on the equity side precisely these questions of loss of rent. No moré proper case can be imagined for the exercise of th„e discretionary power alluded to. (G) If the court thinks the verdict should stand, but that the plaintiff ought to have been allotted costs, the judgment must be reversed with costs; and as the costs make up the judgment and it was necessary to appeal from the judgment in order to raise this question, we should have costs as on appeal from a judgment, and not merely the ten dollars costs of appeal from an order.
    
      Davies & Rapallo, attorneys, and Edward G. James of counsel, for respondents, on the question as to setting aside the verdict for insufficiency of damages argued:—
    
      The case on appeal will be read in vain to discover any testimony upon which the jury could or ought to have predicated a verdict for any definite .sum as net damages for the period in question, or upon which an appellate court can say with certainty that the verdict is erroneous. The amount of damages in these cases is peculiarly a question for the jury. The Court of Appeals has said: “ Such evidence as can be given, should be given, and facts naturally tending to elucidate the extent of the loss should not be withheld. But when all the proof which, in the nature of the case is fairly possible has been given, the good sense of a jury must provide the answer.” Drucker v. Man. Ry. Co., 104 N. Y. 164. If a plaintiff in cases of tort, does not furnish evidence of damages upon which a verdict can be predicated, without substituting surmise for judgment, the verdict must be nominal. Leeds v. Met. Gaslight Co., 90 N. Y. 26. Here it is plain that the plaintiff did not give “ all: the proof which in the nature of the case was fairly possible,” and upon the vague and indefinite evidence which he did furnish, the good sense of the jury has provided the only possible answer upon which twelve impartial minds could agree.
    Upon the question as to whether the verdict carried costs, they cited Rathbone v. McConnell, 21 N. Y. 466; Abendroth v. Man. Ry. Co., 22 J. & S. 417 ; affirmed, 122 N. Y. 1; Kane v. Met. El. Ry. Co., 34 State Rep. 876 ; Dunster v. Kelly, 110 N. Y. 558; Quinn v. Winter, 28 State Reporter, 178. And referred to and commented on Bruen v. Manhattan R. R. Co. decided by the Common Pleas: Dean v. Met. El. Ry. Co., 119 N. Y. 540; Kelly v. The New York and Manhattan Beach Railway Co., 81 H. 233.
   Per Curiam.

So far as a judgment may be affected for error upon the trial there is no reason for reversal.

The damages given by the jury were, according to the testimony, insufficient, and the plaintiff was entitled to a new trial upon his- motion. § 999, Code Civil Procedure.

The action was for damages to the rental value of plaintiff’s house, caused by the building and operation of defendants’ railway along that house.

The evidence in behalf of plaintiff was not contradicted. The defendants called no witnesses.

The structure was about forty feet wide, with three tracks and a track-walk on each side. It was floored over with strips of wood, with small spaces between them. The structure was distant from plaintiff’s premises at one point 20 feet and at the nearest 18.53 feet. The trains passed every few minutes, and such as ran to Rector street were switched in front of the premises. The locomotives sent out steam and smoke. It was proved that on damp days the steam sent out would occupy the entire width of the street and hug the buildings on either side of it.

It was proved by a competent witness what was the percentage of light cut off from the building by the structure and passing of the trains. The amount cut off was important. The light of the store was diminished by the structure and the trains, and the light of the floor above was diminished by the trains and the smoke and steam sent off by locomotives in front of the house.

A witness gave evidence as to the loss of rentals. Although he was an agent of the plaintiff his testimony was uncontradicted, and there was no reason to believe that he did not testify truly. His testimony included the statement of many and different sums and quantities. It was difficult to keep the testimony in mind and to make a rational deduction from it. In reality, guch a case is not one fit for submission to a jury, although the rules of law require that it should be tried by a jury.

It is to be further observed that no peculiar benefit was done by defendant’s railroad to the premises.

The jury, in finding that the plaintiff had suffered in four years but six cents damages from the annoyances that have been partly described, must have neglected their duty to give effect to the testimony however difficult and laborious the performance of the duty might be. The hardness of the task probably led to its not being thoroughly done, and the jury then must have thought that the plaintiff had not proved his case with certainty.

The motion for a new trial should have been granted, and as the charge was correct and the defendants not at fault (Robbins v. The Hudson R. R. Co., 7 Bos. 1), the costs of the trial and the costs of this appeal are ordered to be costs in the action and to abide the event. The order denying this motion is reversed and a new trial ordered, with costs as above stated.

Upon the entering of judgment the clerk refused to tax costs for plaintiff and taxed defendants’ costs and inserted them in the judgment. The correctness of the clerk’s action depends, under § 3228, Code Civil Procedure, upon whether “ a claim of title in real property arises upon the pleadings.” If it does the plaintiff should have the costs. If it does not the taxation was correct:

The sixth subdivision of the complaint is that the plaintiff has certain rights in Trinity place, and that those rights constitute an easement in the bed of the street which attaches to his said abutting property. The eleventh subdivision contains the averment, that the defendants have taken no proceedings to condemn the easement. The answer denies any knowledge or information sufficient to form a belief as to the allegations of the sixth paragraph of the complaint. This of course puts in issue the plaintiff’s title to the easement which is real estate.

This is a material issue. The right of defendants to use the streets as they do use, is valid, excepting that they have not given compensation to the owners of the easements that they have taken. They, therefore, are not liable to one not entitled to compensation, that is, to one who is not owner. This is true, while it is also true that the wrong-doing makes the defendants liable for damages, as trespasser. That is, they are so to one who is owner of the easement.

The motion for retaxation should be granted, and the order denying that motion be reversed, with ten dollars costs.  