
    Max S. Korn, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    1. Railroad—Elevated—Trespass—Parties.
    An action to restrain the operation of an elevated railroad and for damages may be maintained by one who holds the legal title to adjacent property, although others have an equitable interest therein, and is entitled to recover the entire damages sustained.
    2. Same—Diminution op rental value.
    Evidence sufficient to show a diminution of rental value caused by the operation of an elevated railroad.
    3. Same—Evidence.
    The admission of testimony as to the value of the property in answer to questions improper in form is not reversible error where it appears that the court did not follow such testimony in reaching its determination, but followed other evidence bearing on the same question.
    4. Same—Conveyance op easements.
    It appearing that another person was interested in .the property as a partner with plaintiff, although the latter held the legal title, the judgment should provide that such other person should join in the conveyance to be made to defendants on payment of the damages awarded.
    5. Same—Costs.
    Where a request to insert such a condition was refused, and on appeal the judgment is modified in that respect, the modification should be without costs. (Van Brunt, P. J., dissents.)
    Appeal from a judgment recovered on trial at the special terml
    
      Edward C. James, for app’lts; John E. Burrill and J. Archibald Murray, for resp’t.
   Daniels, J.

The plaintiff became the owner of premises on. the southeasterly corner of Seventy-second street and Third , avenue in the city of New York on the 31st day of December, 1888, by a deed executed and delivered to him at that time. They consisted of the avenue numbers of 1241,1243,1245. He conveyed away that portion of them designated by the number 1241, remaining the owner of the residue, fronting to the extent of fifty-eight feet upon the avenue, and ninety feet in depth upon Seventy-second street. At the time he received his conveyance there had been erected upon the land a building four stories in height. This was divided into two stores fronting upon the avenue, and a small rear store fronting upon Seventy-second street

The building above the stores was divided into apartments and rented and occupied for residences. There were six apartments over the corner and rear store, and three over the other store. The elevated railroad structure of the defendants had previously been erected in the avenue and was operated for railroad purposes by the defendants from the time the plaintiff received his conveyance until the commencement of this action on the 20th of June, 1889.

It was brought for the recovery of damages sustained by the use of the structure for the passage and repassage of railway trains propelled by steam locomotives in the transaction of the business of the defendants. The structure and this use of it were alleged to have injured the premises, and to have reduced their value and rentals during the time the plaintiff was the owner under the deed and the commencement of the action. And as a part of the relief which it was the object of the action to secure, an injunction was demanded restraining the use of this structure in the manner already stated by the defendants.

While the deed which was executed and delivered to the plaintiff for the conveyance of the premises was complete and absolute in its terms, the witness Isidor S. Korn, a brother of the plaintiff, testified that it had been obtained for the joint benefit of himself and the plaintiff as partners in the property. And for that reason it was contended on the part of the defendant that the action could not be maintained by the plaintiff alone, or if it could, that he was entitled to recover no more than a compensation for the undivided half interest in the damages sustained by the property, and in the sum to be awarded as the price of the easements taken and appropriated by the defendants in the use and operation of the railway. But this objection cannot be maintained, for the reason that the deed did convey the legal title to the property to the plaintiff, subject of course to any equities growing out of his relation with his brother as to the division of the proceeds of the property. He was in this respect at least a trustee for the benefit of his brother to the extent of his interest, and as such, under § 449 of the Code of Civil Procedure, could maintain the present action in his own name. The court, therefore, did not err in overruling this objection made on behalf of the defendants.

Evidence was given in the course of the trial tending to prove that the property fronting upon the avenue while it had appreciated in value during the existence of this structure, had failed to do so in the same proportion as the property bad advanced in value upon the side streets. And from this evidence it might very well be inferred that the property upon the avenue had been injured by the construction and operation of this railroad. Upon this point this evidence was ample to support that conclusion, although it was contradicted by the testimony of the witnesses produced on behalf of the defendants. It also appeared that so much of the building as was devoted to flats for the occupancy of families was, for a portion of the time, unoccupied on the avenue front, and that this condition of vacancy was greater than it was in the portions of the building adapted to the same object fronting upon the street.

It was also stated that the rents of these flats were necessarily reduced to obtain occupants, and that the occupants themselves were a less desirable class of tenants than those by whom, when the building "was erected, it had been expected the flats would be taken and used. This evidence tended to support the same conclusion as that given by the witnesses concerning the difference in the appreciation of the rents between property upon the avenue and that located upon the streets crossing the avenue. And it was not overcome in its effect by the testimony establishing the fact that the stores fronting upon the avenue, particularly the one on the corner, had materially advanced in their rental. That on the corner was shown to have rented for a very large advance, but that advance was for a period of time subsequent to the commencement of this action. And it was largely induced by the circumstance that the tenant who took the store had been obliged to surrender another previously occupied by him in the vicinity, and he obtained this store to continue the enjoyment of the advantages of the business he had already in the neighboring store built up and secured for himself. Of course if the claim of the plaintiff had been limited to the injury sustained by him through the occupancy of the stores, no case for damages would have been made out in his favor. But the action was not restricted to that part of the property, but included so much of it as had been devoted to the occupancy of families in the three stories above the stores. And as to them more particularly than the -stores themselves, the evidence was sufficient to support the result reached at the trial that the plaintiff had been injured in the reduction of rents to the extent of $350, which was the amount awarded for that purpose.

Upon the trial the witnesses Freund and Isidor S. Korn were each asked what in their opinion was the value of this property located as it was upon the avenue, having as appertaining to it the use of the whole of the avenue above the surface of the street. This was objected to specifically by the counsel for the defendants, but the court permitted in the first instance the witness Freund to answer. And he testified that the value would be from one hundred to one hundred and ten thousand dollars. And to the ruling allowing this answer the defendants’ counsel excepted.

In answer to a similar question the other witness afterwards testified that the property would be worth the sum of $100,000. And an exception was also taken to the ruling of the court permitting this question to be answered. But as to the evidence in this manner adduced from the witness Freund, the defendants seem to have in the main been responsible for the question which was permitted to be answered. For in the examination of this witness by their counsel evidence was obtained from him that there had been a decrease in the value of property on Third avenue, and he added, “from the very fact of the existence of the elevated road..” This answer certainly opened the door to the further question afterwards put to the same witness by the counsel for the plaintiff as to the value of the property if the avenue itself had not been obstructed or devoted in part to the uses of this railroad. But assuming, as it may be necessary to do under what has been said in McGean v. Manhattan R. Co., 117 N. Y., 219; 27 N. Y. State Rep., 337, that these questions were improper in form, still the defendants do not appear to have been injured by the answers allowed to be taken. For the witness Freund had previously stated that in his judgment the value of this part of the property was no more than the sum of from $75,000 to $77,500, while in his answer to the question to which exception has been taken he places the value, without the railway structure, at from. $100,000 to $110,000. The other witness placed the present value of the property at from $75,000 to $80,000, while without the railroad his testimony was that it would be worth at least $100,000. This presented, in the judgment of each of the witnesses, a very large difference arising out of the construction, maintenance and operation of the railway, while the court, in its final decision, awarded no more than the sum of $5,500 to the plaintiff as the value of the easements which had been appropriated by the defendants through the construction and operation of the railroad.

It is evident, therefore, that this testimony was not followed by the justice presiding at the trial in reaching the determination of the depreciation in the value of the property resulting from the existence and use of the railroad. In adopting the conclusion which is contained in the decision, the other evidence bearing upon the same question appears to have been what was followed by the court. And, under the authority of the case already referred to, the taking of these answers, although erroneous, in no way affected or prejudiced the defendants. And that view was followed under similar circumstances in Mitchell v. Metropolitan R. Co., 31 N. Y. State Rep., 80. So far, therefore, as damages were allowed for injuries to the premises themselves in the diminution of their rental returns, and the compensation was fixed upon the payment of which the defendants have become entitled to a conveyance of these easements, the court did not exceed the fair result and import of the other testimony.

But inasmuch as it was stated by the witness Isidor S. Korn that the plaintiff had taken the title for his benefit, as "well as that of himself, the judgment should have provided that he should join in the conveyance of the easements with the plaintiff to these defendants. That is necessary to avoid any possible claim which he might hereafter present against the railway companies, for they are entitled upon the payment of this as the complete compensation for the reduction of the value of the property by the construction and use of the road to such a title as will shield and. guard them from even an unfounded claim which this party under the circumstances might be disposed to hereafter make. He should, therefore, by the judgment be required so far to join in the conveyance as to consent to the railway companies acquiring these easements for the purposes of the railway through the deed of the plaintiff in the action. ' And, as so modified, the judgment should be affirmed, without costs of the appeal to either party.

Van Brunt, P. J.

I do not concur in that part of Mr. Justice Daniels’ opinion which provides for modification and affirmance without costs. The plaintiff is beyond doubt the real party in interest, and as such was authorized to bring the action, as is conceded in the opinion. If so, while it may be proper to compel Isidor Korn to unite in the conveyance, yet if the action was properly brought there seems to be no reason why the plaintiff should not have his costs.

O’Brien, J.

In this case there is no provision in the decision or judgment that Isidor Korn unite in the conveyance to defendants. The record shows'that .defendants requested as a condition upon their paying the damages awarded that they should receive a conveyance and release of all rights of plaintiff" and his brother Isidor. This request, though proper, was refused. I concur, therefore, with Mr. Justice Daniels that the judgment should be modified, without costs.  