
    George Herold, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed March 9, 1891.)
    
    1. Railroad—Elevated—Charge—Benefits.
    A refusal to find as conclusion of law that in estimating the damages to the rental and fee value of plaintiff’s premises caused by the interference of defendant’s railroad with plaintiff’s easements, benefits peculiar to said premises, which have arisen by the construction of said road, should betaken into consideration, is proper, especially where there is no finding-that there were peculiar benefits.
    2. Same.
    The existence of peculiar benefit and its value must be proved by witnesses credible to the tribunal, and cannot be presumed. It does not necessarily follow from the fact that there was no diminution in the rental value,‘but a steady increase, that the lessening of air and light and convenience had not a hurtful effect on the rental value.
    Appeal by defendants from judgment entered upon findings- and conclusions made at sq>ecial term.
    
      Davies & Rapallo, for app’lts; Charles Gibson Bennett, for resp’t.
   Per Curiam.

It is urged as a ground .of reversal by appellants that the court refused to find as a conclusion of law, “ that in estimating the damages to the rental and fee value of the plan-tiff’s premises caused by the interference of the defendants’ railroad station and structure and the operation of the trains with the easements of air, light and access appurtenant to the premise^, benefits peculiar to said premises which have arisen by the construction of the said road and the maintenance of the said passenger station at One Hundred and Eleventh street and Second avenue, as shown by the evidence, should be taken into consideration.” This was but an abstract proposition and equivalent to-asking that the court should find the law to be as stated in Newman v. M R. R. Co., 118 N. Y., 628; 30 N. Y. State Rep., 36, and other like cases. And further than this, the request would be inapplicable to the case, unless the court had found or should have found, in answer to a request, that there were peculiar benefits.

There were requests on this subject made by defendants. Some of them merely referred to what might be evidence on the subject of benefits and not the existence of the benefits, as inferred from the whole of the evidence. One such request was, “ The effect of the stations of the elevated is to increase the trade of shops in the immediate vicinity.”

The other requests which the court refused to find were like, these: 24. The proximity of the station, etc., is a peculiar benefit to the rental value of the store, etc. 25. The proximity of the station, etc., is a peculiar benefit and enhancement of the value of plaintiff’s premises.

The existence of the peculiar benefit is not to be presumed as i aatter of law. It is to be proved as matter of fact. A peculiar-benefit is to be discriminated from a general benefit, arising from general causes that may enhance the value of the particular premises in common with property in general It is to be shown by witnesses credible to the tribunal, and whose testimony is in itself reasonable and in consonance with probability. And, too, the amount of the value of the supposed benefit should be shown with reasonable, certainty and definiteness, to require the court to find that there was benefit, the value of which the defendants were entitled to be allowed. A benefit to a nominal amount only would not help the defendants in an assessment of the damages. The court was not in error in refusing to find as asked in these requests. The testimony did not call incontrovertibly for a different action, nor did the preponderance of testimony.

The appellant supposes that the testimony showed that after the railroad was established in front of the premises there was no diminution of the rental value, and on the contrary, a steady increase of it. From this, it does not follow -that lessening of air and light and of convenience of access had not a hurtful effect upon the rental value; the rents received might have been greater if the air were freer and purer, the light brighter and the access unincumbered. Such a case may make it difficult for the plaintiff to prove damages, but not impossible.

The finding of the court should be sustained.

Judgment affirmed, with costs.

Sedgwick, Ch. J., and Ddgro, J., concur.  