
    William H. Philips and Others, Respondents, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants. Actions Nos. 2, 3 and 5.
    
      Elevated railroads—objection to plaintiff’s title — it cannot be first taken on an appeal — donees of a power of sale—reversal on the question of damages.
    
    In an action brought to recover fee and rental damages against the elevated railroads of New York city, the objection that the plaintiffs, as to seven-eighths of the premises damaged, have not the title in fee simple absolute, but only a life estate, cannot be taken in the first instance on an appeal—especially where the plaintiffs have power, as donees of a power of sale given by a will, to convey an absolute title to the defendants.
    To justify the Appellate Division, in reversing the decision of the court below on the question of damages, it is not sufficient that its judgment differs from that of the court below, but it must be clearly shown that the court below erred; ' ■
    Appeal by the defendants, The Hew York Elevated Railroad Company and another, from judgments of the Supreme Court in favor of the plaintiffs,' entered in the office of the clerk of the county of Hew York on the 11th day of July, 1895, upon decisions of the court rendered after trials at the Hew York Special Term.
    These appeals were transferred from the first department to the second department.
    
      Howard Me Williams, JuUen T.Dmies and George T. Aldrich, for the appellants.
    
      James B. Ludlow and Benjamin A. Gould, Jr., for the respondents.
   Per Curiam : .

These are the usual abutters’ actions against the elevated railroad for rental and fee damages. The objection that the plaintiffs cannqt maintain the action for fee damages, because as to seven undivided 'eighths of the premises they have not a title in fee, but only as to each eighth an estate for the life of the beneficiary of the trust, has been disposed of adversely to the defendants by the decision of the Appellate Division of the first department, which held that the point was not properly raised on the trial. (Phillips v. Metropolitan El. R. R. Co., 12 App. Div. 283.) That decision is conclusive upon us, and we follow it the more readily since no substantial ■ injury is occasioned the defendants by any technical defects in the plaintiffs’ title. Though the plaintiffs may not have a title in fee simple absolute, still, as donees, of the power of sale contained in their testator’s will, they can convey an absolute title to the defendants.

. These cases were tried before the decision of the Court of Appeals in Jamieson v. Elevated Railway Co. (147 N. Y. 322), and it is conceded that the testimony admitted in the case, which, perhaps, might -offend against the rule laid down in the Jamieson case, was received without objection by either party. Therefore, there remains to be considered by us only the correctness of the determination of the trial courts that the premises of the plaintiffs suffered damage both in rental value and in fee value from the construction and Operation of defendants? railroad. The evidence shows the wide divergence of opinion on the part of experts that characterizes the tiñáis of this class of cases. We can say no more on the subject than that, though it is possible if the cases were before us originally we might doubt whether any damage had been caused by defendants’ railroad, we are not justified in reversing the decision of the trial courts to the contrary. To justify such.action it is not enough that we differ from those courts. It must be clearly shown that the- courts below erred. The property in' these three cases is all of -the same general character and substantially in the same general location, being on Third avenue, in the city of Hew York, between Fifty-ninth and Seventieth streets. Three learned justices, with vast experience in the disposition of eases for damage occasioned by elevated railroads, have reached the conclusion that the plaintiffs’ premises have been injured. We should hesitate to disturb their judgment. But there seems to be a marked difference in the amount awarded in action Ho, 3 for damages to premises Ho. 1001 Third avenue and those awarded in the other cases. In the other cases the damages awarded by Justice Andrews and Justice Patterson were substantially at the rate of fifty dollars a foot front. In the case of Ho. 1001 Third avenue the damages awarded are nearly double that rate.

We are of the opinion that in action No. 3,the judgment should he reversed and a new trial granted, costs to abide the event, unless the plaintiffs stipulate to reduce, their recovery to $900 for fee damages and to' $600 for rental damages; if so reduced, the judgment should be affirmed, without costs. In actions Nos. 2 and 5 the judgments appealed from should be affirmed, with costs.

All concurred.

Judgments in cases Nos. 2 .and 5 affirmed, with costs. Judgment in case No. 3 reversed and new trial granted, costs to abide the event, unless plaintiffs stipulate within twenty days to reduce the recovery to $900 for fee damages and to $600 for rental damages, in which case judgment as reduced is affirmed, without costs.  