
    Jacob Bookman v. The New York Elevated Railroad Company et al. Appellants.
    (Argued February 3, 1893;
    decided February 28, 1893.)
    In an action against elevated railroad companies to restrain the operation of their road in an avenue in the city of New York in front of certain lots of plaintiff, the court was requested by defendants’ counsel, but refused to find, that the easements appurtenant to the several lots taken or interfered with by defendants’ railway, aside from any consequential damages to said premises from the taking of the same, have only a nominal value. Held, error; and that as defendants were bound to pay the value of the property they actually took without any allowance for benefits, which could only be made in reduction of consequential damages, it was important, and defendants were entitled to a finding that substantially all the damages were consequential, so as to give room for the allowance.
    The court was also requested, but refused to find, that the only property rights of the plaintiff in the avenue “appropriated or interferred with are easements of light and of air and of access.” Held, error.
    The avenue upon which plaintiff’s lots abutted was a wide one used principally for business purposes. The court was requested but refused to find that the presence of defendants’ railway and its stations near said lots, brought a great number of persons into the avenue “and increased the traffic in and upon the avenue at these points in the neighborhood of said premises.” Held, error; that the nature and operation of the elevated railroads are so notorious that the courts may take judicial notice that they increase the traffic in such avenues and thus generally promote and increase the business therein.
    After the plaintiff had testified as a witness in his own behalf, as to the value of one of his lots and as to the price he would be willing to sell it for, he was asked and permitted to answer this question: “ Suppose you could have your right of action against the elevated railroad company without any impairment of it and still sell that property, what would you still be willing to sell it at 1 ” Held, error.
    Appeal from judgment of the General Term of the Superior Court of the city of Rew York, entered upon an order made December 30, 1891, which affirmed a judgment in favor of plaintiff entered ujion a decision of the court on trial at Special Term.
    This was an action by an abutting owner of property on Third avenue in the city of Rew York, to restrain the operation and maintenance by defendants of their road in said street and for damages.
    The facts, so far as material, are stated in the opinion.
    
      Brainard Tolles, for appellants.
    The judgment was rendered upon the theory that all benefits were to be excluded from consideration, except those peculiar to the specific houses in question. The fee damage found by the court is purely theoretical and constructive and has no basis in the evidence. (Gray v. M. R. Co., 128 N. Y. 499; Roberts v. N. Y. E. R. Co., Id. 455; James v. Corning, 82 id. 449; Bohm v. M. E. R. Co., 129 id. 576; Somers v. M. E. R. Co., Id. 576 ; Becker v. M. E. R. Co., 131 id. 509; Storck v. M. E. R. Co., Id. 514; Doyle v. M. E. R. Co., 128 id. 488; Newman v. M. R. Co., 118 id. 624; Flynn v. Taylor, 127 id. 600.) The learned trial judge erred in enjoining the defendants from the operation of their railroad in front of any of the premises in question unless they paid damages to them all. (Roberts Case, 128 N. Y. 455.) The plaintiff, while testifying in narrative, ■stated with reference to his tenants: “ They object a great deal to the elevated railway.” The defendants objected to it as incompetent and improper and moved to strike it out, but the court declined so to do. This was error. (Mooney v. N. Y. E. R. Co., 16 Daly, 145.)
    
      E. W. Tyler for respondent.
    The learned trial justice made no error in his decisions on the reception or rejection of evidence and in his passing upon the findings of fact and conclusions of law. (40 N. Y. S. R. 445; Stouck Case, 131 N. Y. 517; Suarez v. Mead, 39 N. Y. S. R. 495; Kane Case, 34 id. 876.) The periods during which the plaintiff is entitled to recover for the damage to the rental value of his premises are correctly determined by the judgment. (Barrick v. Schifferdecker, 123 N. Y. 52; Henderson v. N. Y. C. R. R. Co., 78 id. 423; Price v. Price, 17 Hun, 432.) The fact that portions of the property were in the possession of tenants holding under the plaintiff was no reason for not awarding rental •damages. (Mortimer v. M. R. Co., 25 J. & S. 509; Hamil 
      
      ton v. M. R. Co., 30 N. Y. S. R. 17; Werfelman v. N. Y. E. R. R. Co., 32 id. 132; Conkling v. N. Y. E. R. R. Co., 36 id. 124; Korn v. N. Y. E. R. R. Co., 39 id. 322.) The learned trial judge committed no error in refusing to strike out the testimony of the plaintiff that his tenants objected to the elevated road. (2 Rice on Ev. 919, 921; Mosely Case, 75 U. S. 397; Harriman v. Stowe, 57 Mo. 93; Brownell v. P. R. Co., 47 Mo. 240.) In estimating the fee damages the court is not confined to the existence of the structure as distinguished from the operation of the railroad. (A. B. N. Co. v. N. Y. E. R. R. Co., 129 N. Y. 252.) In determining the rental or past damages equity* will apply legal rules in measuring the damage. (Messenger v. M. R. Co., 129 N. Y. 502.)
   Earl, J.

The plaintiff was at and before the commencement of this action the owner of lots Ho. 261, 1028, 1240, 1242, 1244, 1246, 1248 and 1255 in Third avenue in the city of Hew York. The defendants’ elevated railroad was constructed and is maintained and operated through that avenue. The plaintiff commenced this action against them and prayed for the relief usual in this class of actions.

The court upon the trial found the rental damages to the lots to be $17,500, and the fee damages $22,000. Host of these lots were situated in the neighborhood of Seventy-seventh street, several miles from the business center of the city.

We have carefully read the evidence and are satisfied that in the estimate of damages injustice was done to the defendants, and that proper rules of law were not applied in awarding the judgment.

The court refused upon the request of the defendants’ counsel to find the following facts : That the easements, if any, appurtenant to the several lots of land, and taken or interfered with by the defendants’ railway, aside from any consequential damages to said premises from the taking of the same, have, in themselves, only a nominal value.”

This request should have been found, and the refusal to find the facts shows that the court misapprehended the principles of law laid down in the cases of Newman v. Elevated Railroad Co. (118 N. Y. 618), and Bohm v. The Same (129 id. 576). According to those principles the defendants were bound to pay the value of any property they actually took without any allowance against such value for benefits; and the allowance for benefits could be made only in reduction of consequential damages. Hence it was important for the defendants to have a finding that substantially all the damages were consequential so as to give room for the allowance of benefits.

The court also refused to find the following facts, as requested : “ That the only property rights of the plaintiff in said Third avenue taken, appropriated or interfered with by defendants are easements of light and of air and of access in and over said street in front of and appurtenant to the lots of land described in the complaint herein.” This was a proper request, and why it was refused is not perceived.

The court also refused to respond to the following requests: That “the presence of defendants’ railway and of their stations at Twenty-third and Fifty-ninth streets brings a large number of persons daily into the Third avenue in the immediate neighborhood of the portions of the premises in suit Bos. 261 and 1028 Third avenue, and increased the traffic in and upon said avenue at these points, in the neighborhood of said premises respectively.” “ That the effect of the proximity of the defendants’ stations above mentioned to the said parcels of the premises in suit is advantageous to the business portion of the said premises and produces a special benefit to the same for business uses.” We think these facts could with propriety have been found upon the evidence in the case. But the nature and operation of the elevated railroads are so notorious that the courts may assume to be acquainted with them; and from the numerous cases which have come before them, they may take judicial knowledge that they increase the traffic in the wide avenues largely devoted to business purposes and thus generally promote and increase the business there.

The court found the rental damages to lot Bo. 1255 to be $2,500, and the fee damages $3,000. That lot is situate oti the avenue above Seventy-seventh street, and the plaintiff purchased it in 1881 after the elevated railroad was built for $22,500. He testified at the trial that he was sure the lot was then worth $25,000, and that he could now obtain $30,000 for it. He testified that he wanted to keep the property for his family, and on that account did not wish to sell it, and that but for that reason he would sell it for $30,000 ; he might sell it for $28,000. He was then asked by his counsel this question: “ Suppose you could have your right of action against the elevated railroad company without any impairment of it and still sell that property, what should you still be willing to sell it at ? ” Counsel for the defendants objected to the question as incompetent and improper, and the court overruled the objection. The plaintiff then answered: “If I Could keep my right of action against the elevated road I Would take $25,000 for it.” It is impossible to perceive upon what principle this question and the ruling thereon could be justified. It was not justified by the previous course of the plaintiff’s cross-examination, and it enabled him to state in this way what he considered his cause of action worth. The very highest price he had previously put upon the lot Avas $30,000, and thus it appears that the highest price he put upon his cause of action was $5,000, and yet the court awarded him $5,500. This was certainly a very novel way to test the value of this lot. The court could, with equal propriety, have permitted the plaintiff directly to estimate the value of his lawsuit. What the plaintiff would be Avilling to sell his lot for under such circumstances was not proper evidence of its value, and we think there was error in receiving it.

Justice requires that there should be a neAV trial of this action so that the principles of law laid down in the cases above cited may be properly applied.

The judgment should be reversed and a new trial granted, costs to abide event.

All concur, G-kat, J., in result.

Judgment reversed.  