
    HENRY C. ALGER, Administrator, Etc., Appellant v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Respondents.
    
      Action for damages to real estate caused by the construction of an elevated railroad in the adjoining street.
    
    The complaint was dismissed at the trial term, on the ground that the plaintiff had not proven facts sufficient to entitle him to the consideration of the jury on the question of damages.-
    
      Held, that at the time the plaintiff rested his case, he had shown sufficient facts to entitle him and his case to the consideration of the jury. Much depended upon the ijroper inferences to be drawn from the evidence, but inasmuch as different men of reasonable minds might have reached different conclusions from the facts disclosed by the evidence, the case was one for the jury to consider and determine upon the facts. The conclusion, therefore, cannot be avoided that the dismissal of the complaint constituted error.
    Before Freedman and Dugro, JJ.
    
      Decided October 10, 1891.
    Appeal by the plaintiff from a judgment in favor of defendants dismissing plaintiff’s complaint with costs, and also from an order denying plaintiff’s motion for a new trial.
    
      A. Edward Woodruff, attorney and of counsel, for appellant, argued:—
    I. Though a motion was made in the present case to set aside the dismissal, etc'., and denied, the exception duly taken to the “ dismissal ” was all that was required to raise the question, whether upon any construction of the facts proved the plaintiff was entitled to go to the jury. Stone v. Flower, 47 N. Y., 566; Trustees, etc., v. Kirk, 68 Ib., 459-464; First Nat. Bank v. Dana, 79 Ib., 108; Train v. Holland Ins. Co., 62 Ib., 598; Clemence v. City of Auburn, 66 Ib., 334; Scofield v. Hernandez, 47 Ib., 313.
    II. A motion for a nonsuit can never be granted where a cause of action, however trifling, is either proven or admitted in any way. Cowen & Hill’s Notes, 450-466; 2 Hill, 644; Van Rensselaer v. Jewett, 2 N. Y., 135; People v. Metropolitan Tel. Co., 64 How., 120; Waits’ Practice, vol. 3,160; Baylies’ Trial Prac., 219; Weber v. Kingsland, 8 Bosw., 415; Ihle v. 42d St. R. R., 47 N. Y. 317; Ryall v. Kennedy, 8 Jones & S., 347-359; Cornwell v. Mills, 12 Ib., 45. A nonsuit cannot be granted if the plaintiff is entitled to recover anything, although merely nominal damages. Weber v. Kingsland, supra; Van Rensselaer v. Jewett, supra; Forbes v. Chichester, 26 N. E. Rep., 914. See opinion, Earl, J. It was in evidence in the present case: (1.) That the defendants were in the occupation of the intestate’s property at the time of his death, and had been in such occupation since the construction of the road in 1877. (2.) That before the road was built the property rented for $1,200 per year, and after the road cáme into the street only a rental of $660 per year could be obtained. (3.) The effects of the construction, operation and maintenance of the road were shown to be more than usually detrimental to the property; that the light was so obstructed as to necessitate the burning of gas on two of the floors ; that access to the property was obstructed by a column in front of the house, and by reason of signals almost immediately in front of the house there was much more than the usual amount of noise, etc. It should not need any citation of authority to sustain the proposition that such evidence made out a prima facie case for plaintiff. Drucker v. Manhattan Ry. Co., 106 N. Y., 157; Taylor v. Metropolitan Railroad Co., 50 N. Y. Supr., 456; Conkling v. Manhattan Ry. Co., 12 N. Y. Supp., 846; Sherwood v. Metropolitan Railroad Co., 12 Ib., 852.
    In St. John v. The Mayor, 6 Duer, 315, it is said: “ The plaintiff showed the actual receipts of his hotel for a year or more previous to the obstruction complained of, the actual daily receipts during the continuance of the obstruction, and, again, the actual receipts for some months after the obstruction was removed. This furnished the means of computation and of satisfactorily ascertaining the diminution of receipts.” See also, Francis v. Shoelkopf, 53 N. Y., 152; Jutte v. Hughes, 67 Ib., 267; Baltimore & Potomac R. R. v. Fifth Baptist Church, 108 U. S. 317. But if it were necessary to seriously argue the question on principle, we could not do better than adopt as our argument that presented by the defendants to the Court of Appeals in a recent case. In the case referred to, which was that of Moore, et al., Executors of Margaret W. Duyckinck v. The New York Elevated R. R., et al., on appeal from this court, the writer was counsel for the plaintiffs, and these defendants endeavored to convince the Court of Appeals that such evidence as appears in the present case was sufficient, and all that was required on the part of a plaintiff in such actions as these, to make out .a ■prima facie case. Since the present case was tried, the Court of Appeals have handed down an opinion which is authority for the proposition that in any case such as this, where an elevated railroad has occupied a city street without the consent of the abutting owner, the road is presumed to be an interference with the property owner’s rights, and the question is simply whether on the proof in the case the owner is entitled to recover substantial, or only nominal damages. Williams v. Elevated R. R., 26 North Eastern Rep., 1048.
    III. After the road was built and in operation, in 1879, a lease was made of the premises at a reduced rental, under which lease the tenant held the premises during the period covered by this suit. Under such circumstances the claim that the cause of action was not in the landlord cannot be sustained, and the learned judge so held at the trial. The question has been settled in this court, and is not now open to further argument. Mortimer v. Manhattan Ry., 8 N. Y. Supp., 536; Hamilton v. Manhattan Ry., 9 Ib., 313; Moore v. N. Y. Elevated; decided December, 1890; concurring opinion, Freedman, J. And in the Supreme Court, and in the Court of Common Pleas, the decisions of this court have been followed on the question. Knox v. Metropolitan El. Ry. Co., 12 N. Y. Supp., 848; Conkling v. Manhattan Ry. Co., supra; Macy v. Metropolitan El. Ry. Co., Ib., 804; Doyle v. Manhattan Ry. Co., Ib., 548.
    
    
      Davies & Rapallo, attorneys, and Edward C. James of counsel, for respondents, argued:
    I. That, by 2 R. S. 114, § 3, executors and administrators are authorized to “ maintain actions for trespass committed on the real estate of the deceased in his lifetime.” But Mr. Alger could not maintain an action for trespass upon this real estate by the defendants at the time he died, because trespass is a possessory action, and for more that six years previous to his death he was not in possession. Tobias v. Cohn, 36 N. Y., 363; Holmes v. Seeley, 19 Wend., 509; Campbell v. Arnold, 1 Johns., 511; Waterman on Trespass, §§ 948, 949. By reason of the term of years created by this lease Mr. Alger had become a reversioner and his estate in this land for the time being, an incorporeal hereditament. 4 Kent’s Com., m. p. 353-5. At the time this action was brought, in May, 1879, the only action he could have maintained, had he lived, was the statutory action under § 1665 of the Code, “ founded upon an injury done to the inheritance.” Thompson v. Man. Ry. Co., 15 Daly, 438; Tobias v. Cohen, supra; Van Deusen v. Young, 29 Ib., 9. His heir, or devisee, after his death and after the expiration of said term of years, could recover the damages to the inheritance from defendants’ acts between those dates. Mortimer v. Man. Ry. Co., 57 Super. Ct., 509. But no such recovery could be had, in either case, unless the injury to the inheritance was alleged in the complaint and proved upon the trial. Tobias v. Cohen, supra. The complaint does not state that the plaintiff’s intestate was seized in reversion, and does not allege an injury to his future estate, or reversionary interest, but states the entire damages for which it prays judgment, to be occasioned by the depreciation in the value of the premises. No action at law can be maintained by an owner in possession to recover such damages. Pond v. Met. El. Ry. Co., 112 N. Y., 186. Much less can it be maintained by the administrator of a reversioner, as has been attempted in this case.
    II. It is plain that Mr. Alger did not sustain any damages from anything done or omitted by the defendants within six years preceding his death. The most that can be said is that, at the time he granted the term of years, in December, 1879, he might have, secured a larger rent than the lease called for, if the defendants’ railroad had not then occupied the street. But the plaintiff did not produce proof of this fact. The jury was left to guess at it. It is equally plain that, had the railroad been removed in 1881, Mr. Alger could not have had any increase of his rent while this ten years’ term continued. Whatever injury was done to him was through his own act in granting a ten years’ lease in 1879, and thus cutting himself off from all improvement in rental value during said term. The only acts of the defendants which could possibly have contributed to such damage must necessarily have been done prior to the date of said lease. But there was no proof that defendants’ acts prior to that date had affected that rental value, and, even if they had, their liability for such acts was barred by the statute of limitations before this action was brought. Mrs. Hilbert, the lessee, now Mrs. Perry, testified that, when she went there originally, the railroad was not there ; that she first paid $100 a month for a couple of months, and then made improvements, and after that paid $75 per month, and then took the ten years’ lease at $55 per month ; that at some time before the railroad, she sublet the store and" first floor for $75 a month, and the two top floors for $18 per month and after the ten years’ lease took effect, she first sublet the whole house for $75 per month, and after that at $50 for the store and first floor and $12 per month for the two upper floors. This was all the proof touching the rental or rental value at any time. No previous leases were offered. No evidence was given of fee or rental value at any period before the railroad, or of the fee or rental value of any other property, on or off the line of the railroad, before or after the railroad was built. In Drucker’s case (106 N. Y., 164) the court, speaking of the evidence in these elevated railroad cases, says : “ Such evidence as can be given should be given, and facts naturally tending to elucidate the loss should not be withheld.” But here the evidence which could have been given was not given, and, although the property was deeded to plaintiff’s intestate December 31, 1868, its whole rental history was suppressed or withheld, except the vague and confused statements of the woman who kept the sailors’ hoarding house. The plaintiff, therefore, did not discharge his burden of proof, or make a case on the subject of damages to rental value, which he was entitled to submit to a jury. Any verdict for the plaintiff founded upon such evidence must have been set aside. The learned judge, therefore, properly dismissed the complaint for this failure of proof for the same reason that the general term of this court reversed the judgment of the special term, in the Cunningham case, decided in February, 1891. See Cunningham v. Man. Ry. Co., Ms. Op. Truax, J.
   By the Court.—Freedman, J.

The action was brought by the plaintiff as administrator of Daniel B. Alger, deceased, to recover damages caused by defendants’ elevated railroad to premises No. 37 Front Street in the city of New York owned by plaintiff’s intestate in his lifetime. The action was commenced May 14, 1889, and under the pleadings and the evidence given at the trial the plaintiff, upon proper proof of damage caused by the defendants, was entitled to recover damages from May 14, 1883, to the death of Daniel B. Alger, which occurred June 7, 1887. Under the decisions of former cases the outstanding lease constituted no bar. Consequently the only question requiring serious attention is whether the plaintiff gave sufficient evidence of damage during the period stated. The trial judge must have been of the opinion that the plaintiff had not done so, for he dismissed the complaint upon plaintiff’s own showing and without requiring the defendants to go into a defence. Upon a careful examination of the whole case I am of the opinion that the plaintiff showed sufficient to entitle himself to go to the jury. A good deal depended upon the drawing of the proper inferences. But inasmuch as from the facts disclosed different men of reasonable minds might have reached different conclusions, it was for the jury to determine the facts. In Jones v. Metropolitan El. Ry. Co., 14 N. Y. Supp., 632, the case was submitted to the jury under an unexceptionable charge, and the jury found a verdict for the plaintiff for only six cents damages. The general term, on plaintiff’s appeal, ordered a new trial on the sole ground that the damages thus awarded for a period tif four years were insufficient and that the hardness of the task to determine the damages was no excuse for the neglect of the jury to thoroughly perform its duty. That case in some of its essential features relating to the damages was very much like the case at bar. The conclusion cannot therefore be avoided that the dismissal of the complaint constituted error.

The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Dugro, J., concurred.  