
    Herman Kahn, Resp't, v. The New York Elevated Railroad Co. et al., App'lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 10, 1893.)
    
    1. Railroad—Elevated—Value oe easements.
    In an action against an elevated railroad, it is error for the referee to refuse to find as a fact that the easements pertaining to the plaintiff’s lands, taken for the uses of the railroad, aside from any damage to the land from the said taking, have in themselves only a nominal value.
    3. Same—Proof of damages.
    Proof of the amount of the rents received before and after the construction of the road furnishes a proper basis for a finding as to actual loss of values.
    Appeal from a judgment of this court, entered upon the report of a referee. The action was to restrain the operation and maintenance of a branch of the elevated running in front of plaintiff’s premises, No. 306 East Thirty-fourth street, between First and Second, avenues, in the city of New York, and for damages. The judgment granted the relief prayed for, unless within ninety days the defendants paid $2,500 assessed as damages to the fee value of the premises caused by the railroad. Damages for loss of rents were allowed, $2,168, from October, 1882, to March 10, 1892.
    
      J. Aspinwall Hodge, Jr., for resp't; R. L. Maynard, for app'lt.
   Daly, Ch. J.

The referee was requested by the defendants to find as a fact that the easements pertaining to the plaintiff’s lands, taken for the uses of the railway, aside from any damage to the land from the said taking, have in themselves only a nominal value. This was refused, and the defendants excepted. It was error to refuse to find as requested as fact, and the error requires the reversal of the judgment. Bookman v Manhattan Ry. Co., 50 St. Rep., 703; Sutro v. Met. El. Ry. Co., id., 701.

The respondent's contention that the refusal to find as requested is immaterial, has been discussed in the case of Cook against the same defendants (herewith decided), and the conclusion there reached applies to this case. We assume, in so deciding, that the printed case shall be taken to be amended in respect of the request to find under consideration, by the substitution of the word “easement ” for “ assessment,” as there is no disagreement between counsel as to the fact.

If it be proper to express an opinion upon the facts of this case, and we think it is, because in the Cook case above mentioned we have reversed upon the facts as well as the law, we feel justified in saying that there seems to be evidence upon which to base a finding" ■of damage to the fee and rental value of the plaintiff’s property. We assume that the finding of $2,168 loss of rentals from October 20,1888. was intended to be a finding of loss of rentals from October 20,1882, there being a manifest error in the printed book in respect ■of the dates; and, as we so understand the finding, the evidence appears to justify it.

The referee evidently made due allowance for all the causes which, apart from the injurious effect of the elevated railroad, were claimed to have contributed to prevent that recovery of rents and values in the Thirty-fourth street east of the Third avenue which may be found in other localities. Among such causes was the opening up of eligible residential neighborhood in the upper part of the city due to the rapid transit system. But there remains the fact that the maintenance and operation of the road in front of these premises without benefiting them in the slightest degree made them undesirable for tenants and so affected their rental value and their fee value, as indicated by the depreciation of rents. In this case the plaintiff furnishes evidence, which is wanting in the Cook case, of the rents received before the construction of the road. The difference between the rental obtained before the road was built and that obtained afterwards is between two and three hundred dollars per annum, and while it is not certain as to which year prior to 1879 the highest rental was received, still the fact is proved which enables a competent conclusion as to actual loss of values to the plaintiff.

Judgment reversed, new trial ordered, with costs to abide the event.

Bischoff and Pryor, JJ., concur.  