
    Marx Ottinger et al., Resp’ts, v. The New York Elevated Railroad Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. Railroad—Elevated—Evidence.
    In an action against an elevated railroad it is not improper to ask a witness what is the rental value of plaintiff’s premises with the free use of all above the surface of the street for light, air and access to and from the-' building.
    2. Same—Requests to bind—Noise.
    A request to rule that plaintiffs had no easements in the street which, authorized them to control the amount of noise made in said street by the. permission of the city, is too broad, as it would include the view that an excessive and abusive street noise is not actionable. Such request is also, immaterial where the court expressly refuses to award any damages for noise.
    3. Same.
    Plaintiff testified as to the rents of the property on his direct examination without objection. On cross-examination it was made to appear that-, there were written leases. Held, that a refusal Jo strike out plaintiff’s evidence was not error.
    4. Same—Election between causes op action.
    Where the complaint in an action to restrain the maintenance of an. elevated railroad contains an allegation that the operation of the railroad, will constitute a nuisance, such allegation may be regarded as surplusage, and plaintiff cannot be called upon to elect between causes of action.
    Appeal from a judgment of the special term.
    
      S. B. Rogers, for app’lts; W. O. Beckham, for resp’ts.
   O’Brien, J.

The judgment enjoins the maintenance and operation of the defendants’ elevated railway in front of the premises number 278 Pearl street, unless defendants pay plaintiff $5,000 as-, the price of certain of his easements. There is also a money judgment of $8,807.86 damages and costs.

There are five questions raised upon this appeal.

First. That it was error to admit opinions of .witnesses upon the-amount of the injury to plaintiffs’ premises.

Second. That it was error to refuse to find that plaintiffs had no easement which would authorize them to control the amount of noise made in the street by authority of law.

Third. It was error to receive oral evidence of the contents of written leases.

Fourth. It was error to deny the motion to compel plaintiffs to elect between their inconsistent claims of nuisance and trespass, and to deny a jury trial of the latter issue.

Fifth. That the amounts allowed for past damages and injury to the fee were excessive and unsupported by the evidence.

• The questions here involved have been so often passed upon in these cases that we would be justified, without assigning any reasons, in indicating simply the conclusions to which we have arrived. We deem it best however to briefly state the grounds upon all the points raised in the order in which they are presented which lead us to affirm the judgment appealed from.

First. As to the opinions of witnesses the question objected to •and to which an exception was taken was one by- the court put tq an expert as follows :

“ Q. What is the rental value of that property in question with the free use of all above the surface of the street, for light, air and -access to and from the building? ”

This precise question was passed upon in Korn v. The Met. El., 59 Hun,505; 37 St.Rep., 597, which weare informed was in December, 1891, affirmed by the court of appeals. 41 id., 949. The Korn case holds that the question objected to does not conflict with the rule laid down in the McGean case, 117 N. Y., 219; 27 St. Rep., 337. See also Mitchell v. The Metropolitan Railway Co., 31 St. Rep., 80.

, Second. The defendants asked the court to make the following xul-ing, which was refused: There are no easements or other rights in the said street appertaining to said premises which authorized the plaintiffs to • control the amount of noise made in said : street by the permission of the mayor, aldermen and commonalty of the city of Mew York.”

This as an abstract proposition of law is not correct, as it would include the view that an excessive and abusive street noise is not -actionable. It was moreover entirely immaterial, as the court •expressly refused to award any damage for noise.

The defendants sought to present the same question in another form by requesting the court to find, which was refused, that the plaintiffs do not own in fee to any portion of the bed of ■said street in front of and abutting on the premises mentioned in the complaint.”

This finding may be entirely true in point of fact, and in one view the question whether plaintiffs owned the fee or merely had -easements might be material.

If they had easements only, these would not be infringed by the noise made by the ordinary running of defendants’ road, whereas, if plaintiffs owned the fee, the city would have the limited and •specific easement of passage only, and all other rights would be in the abutter. I"n this case, however, whether the plaintiffs owned the fee or not resulted in no injury to defendants, for, as already stated, the court expressly refused to find that the plaintiffs were entitled to any damage by reason of noise caused by the maintenance or .operation of defendants’ road.

Third. The error claimed to have been made by the trial judge in receiving oral evidence of the contents of written leases is grounded upon the fact that after one of the plaintiffs had testified on direct examination as to the rent of the store from 1881, it was brought out upon cross-examination by defendants that the tenant of the first floor and basement had a lease by the year, sometimes-two years and sometimes three years, and the witness stated that the leases were m writing. A lease subsequent to 1887 was then, put in evidence, and because no other leases were offered or produced, counsel for defendant moved to strike out all the testimony of this witness as to the rent of the first floor and basement prior'to the 10th day of February, 1887, on the ground that the-written leases of that property were not produced.

We think the court properly denied the motion.

The testimony as to the amounts of rent received was given upon the direct examination without objection nor was any exception taken to such evidence. It is not pointed out upon what-theory such testimony should be stricken out, because it was made to appear by the defendants’ cross-examination that years prior to a period covered by a written lease produced other written leases had been executed between the parties. If the defendants had insisted while the witness was being examined on the-direct upon the production of the leases, they might have been produced, or evidence given to show that they were lost or destroyed..

We do not think, therefore, that in the ruling made there was-error.

Fourth. Defendants claim that plaintiffs should have been compelled to elect between their inconsistent claims of nuisance and trespass and that as to the latter they were entitled to a jury trial..

In the Johnson case decided by this general term m November, 1891, 41 St Rep., 682, the same motion to compel plaintiffs to-elect was made, and the refusal to grant the motion was held not-to be an error which would justify a reversal of- the judgment.

In this latter case and in.the Shepard case, 117 N. Y., 442; 27 St. Rep., 705, the court construed a complaint similar to this one, and in determining that the action based thereon was one to restrain a continuing trespass, held that the mere use of the word “nuisance” could be regarded as surplusage.

- As to plaintiff’s right to .a jury trial this question has been settled by the decision of the court of appeals in the Lynch case, which was handed down in December, 1891, holding in effect that, on such a complaint as the Code stood a year ago prior to the amendment, defendants were not entitled as matter of right to a. jury trial. 41 St. Rep., 541.

Fifth. We have examined the evidence for the purpose of determining whether the claim that the damages awarded were ex-, cessive was well taken and we are of opinion that the evidence given as to the physical injuries to the property justify the findings of the court, and that where the judgment as here has ample proof to support it, it should not, as was said in the McGean case, be reversed, even if some slight error appears in the admission of testimony.

On.the whole case, therefore, we are of opinion that the judgment should be affirmed, with costs and disbursements.

Lawrence, J., concurs.

Van Brunt, P, J.

I concur in the conclusion arrived at by .Mr Justice O’Brien m the case at bar. But I cannot find from the record that there was any special claim made that as to the issues m respect to trespass the defendants were-entitled to a jury trial. Neither do I find that m the case of Shepard v. Manhattan R. R. Co., 117 N Y, 442 , 27 St. Rep., 705, any question was raised m respect to the complaint being for a nuisance or a trespass. In the case at bar there is no allegation m the complaint tending to show that it was the intention of the pleader to declare •as for a nuisance, the only allegation being that certain things are •offensive and disagreeable to, and constitute a great nuisance to and on the building of the plaintiff, and to the tenants and occupants thereof. But it further appears from the other allegations in the complaint that this allegation was merely intended as a de.scription of the effects of the acts complained of upon the premises of the plaintiff; and not in any way to characterize the nature ■of the action ; because we find that m the other allegations in the -complaint these acts are spoken of as wrongful, illegal and a trespass upon the premises, and there is nothing in the complaint indicating in any way that it was the intention of the pleader to demiare other than as for a trespass.

Therefore there was no foundation whatever for the motion made to compel the plaintiffs to elect as to whether they proposed to proceed as for a nuisance or as for a trespass. Hence the question as to a right to a jury trial was one which rested in the dis■cretion oi the court; and such discretion does not seem to have been improvidently exercised.

If the action had been one for a nuisance, there seems to be no -question but that the defendants would have been entitled to a jury trial; for the plaintiff, although he may by his method of pleading har himself from demanding a jury trial, cannot thereby prejudice the right of the defendant thereto. ■

The judgment should be affirmed, with costs.  