
    Sixth Ave. R. Co. v. Metropolitan El. Ry. Co. et al.
    
    
      (Supreme Court, General Term, First Department.
    
    March 14, 1890.)
    1. Elevated Railroads—Injury to Abutting Property—Evidence.
    In an action for injury to property by the erection and maintenance of an elevated railroad in a street on which the property abuts, the admission of evidence as to the possible uses which might be made of plaintiff’s property by the erection of expensive buildings on it, and the amount of income which might be expected to be derived from these improvements, is prejudicial error.
    A Same—Injury to Other Property.
    It is also error to admit evidence as to the injuries sustained by other property, on the same avenue, but in no way connected with plaintiff’s property.
    3. Same—Misconduct oe Trainmen.
    It is also error to admit evidence as to the misconduct of the men in defendant’s service, and as to other annoyances, resulting from the operation of the railway, not affecting the light, air, or approach to the property, or to any interference with it arising from the acts of defendants, or the construction of the railway.
    4. Same—Appealable Orders.
    A judgment recovered at special term in an action for damages in constructing and operating an elevated railroad is final and appealable, though defendants may still proceed under the statute to appropriate 'plaintiff’s easements of light, air, and access to the uses and purposes of their railway.
    Appeal from special term, New York county.
    Action by the Sixth Avenue Bailroad Company against the Metropolitan Elevated Bailway Company and the Manhattan Bailway Company. Defendants appeal from a judgment recovered on trial at the special term.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Davies & Rapallo, (Edward C. James, of counsel,) for appellants. Burrill, Zabriskie & Burrill, (John E. Burrill and J. Archibald Murray, of counsel,) for respondent.
   Daniels, J.

The action was brought for the conjoint object of recovering damages for the construction and operation of an elevated railway in Sixth avenue, in the city of New York, and for an injunction restraining the future use and operation of the railway. At the time when the railway was constructed the plaintiff was, and since then has been, the owner of a block of land on the easterly side of Sixth avenue, between Forty-Third and Forty-Fourth streets. This was in part occupied and used for a stable for its horses and offices, and other purposes connected with its business. It was also, and has continued to be, the owner of a block of land, fronting upon the same side of the avenue, between Fifty-Eighth and Fifty-Ninth streets, and extending easterly 100 feet from the avenue, and also a lot of land fronting upon the avenue, and situated on the southerly corner of Fifty-Eighth street. Neither this land, nor that between Fifty-Eighth and Fifty-Ninth streets, had been improved. AM in their vicinity, and more especially in front of the land between Fifty-Eighth and Fifty-Ninth streets, the structure of the defendants terminated on Sixth avenue. At that termination a station had been erected, which, with the railroad structure, occupied the whole space above the surface of the street, and a portion of the sidewalk. At this point the cars of the elevated railway were stationed when out of use; water was supplied to its engines, and the ashes accumulating therein were taken therefrom; and small buildings were erected upon the surface occupied by the defendants, for other uses and conveniences of the defendants. This condition of affairs had continued in each of these localities from the time of the completion of the railway structure, in or about the year 1878. But in the assessment and determination of the damages the plaintiff was held entitled to recover, for the injury which had accrued to its property, the allowance only of the sum of six cents; and that allowance has not been made the subject of complaint by either of the parties to the action. But early in the progress of the trial it was stated by the defendants’ counsel, in case the court should deem the action to be a proper one for an injunction, that then it would be requested to determine what sum might be paid to avoid the injunction. And it is as to the proceedings which took place, and the evidence which was given to enable the court to ascertain and determine this sum, that the complaint has been made as to the disposition of the action. It was proved as a fact that the light and air in this avenue, and the approach te and from the plaintiff’s property, in front of which the station had been erected, was obstructed by the structure erected and maintained by the,Metropolitan Elevated Bailway Company and the other defendant, as its lessee; and, to avoid the issuing of an injunction restraining the use of the structure as a railway and for these terminal purposes, it was adjudged that the defendant should pay the sum of $67,000 as a compensation for the depreciation of the plaintiff’s property caused by erecting, maintaining, and using these structures in front of the plaintiff’s land on the southerly corner of EiftyEighth street, and upon the westerly side of the block between Fifty-Eighth and Fifty-Yinth streets, and that a further payment of the sum of $28,000 should be made to secure the right to maintain and operate the road in front of the plaintiff’s property between Forty-Third and Forty-Fourth streets.

That relief of this description might be adjudged in this action follows from what was decided in the case of Henderson v. Railroad Co., 78 N. Y. 423; and the correctness of that principle has not been denied by either of the parties to this action. But it has been objected that each of these sums was inordinately large, and beyond the amounts which were justified by the evidence as a compensation to the plaintiff for the erection of this structure, and its future use and operation as a railway in front of the plaintiff’s premises; and the amounts allowed seem to be properly assailed in this manner. That the plaintiff’s property has been diminished in value by the construction and operation of the elevated railway in the avenue is a fact concerning which the evidence leaves no serious ground for doubt; and that the upper part of the structure where the railway terminates, and the station has been constructed and maintained, very seriously affects the value of the plaintiff's property situated in that vicinity, is equally as free from controversy. But the evidence which was taken in the case was not wholly directed to prove the difference between the value of these parcels of property without these railway structures in the avenue; and, as they have been affected by the construction and maintenance of the elevated railway in this manner, that, as the rule has been announced and followed, would be the just criterion for ascertaining what sums of money should be paid to the plaintiff for this diminution in the value of its property. In re Railroad Co., 56 Barb. 456. And that, together with the damages already sustained by the plaintiff by reason of the construction and operation of the railway, and the maintenance of the station, would be the relief the plaintiff wás entitled to by way of fully determining the controversy presented by the action. Drucker v. Railway Co., 106 N. Y. 157, 12 N. E. Rep. 568. But upon the trial of the action this rule was allowed to be exceeded and transcended in the evidence which the plaintiff was permitted to give; for, by the witness O’Beilly, proof was taken as to the possible uses which might be made of the plaintiff’s property by the erection of expensive buildings upon it, and the amount of income which might be expected to be derived from those improvements, and, further, evidence was taken as to the inability of the plaintiff to make use of its property for those objects. This evidence was objected to as incompetent and irrelevant and immaterial, and also on the further ground that the witness was not competent to give his opinion on this subject. But the latter part of the objection is clearly not sustainable, for the reason that the witnesses who gave this evidence were shown to be competent to express their judgment upon the valuation of the property in dispute. Certainly, the evidence went so far as to exclude this as a ground of error capable of being alleged in support of an appeal. Bedell v. Railroad Co., 44 N. Y. 367; Slocovich v. Insurance Co., 108 N. Y. 56, 62, 14 N. E. Rep. 802.

As to the residue of the grounds of objection, it has been urged that they are insufficient to present the question of the inadmissibility of this testimony. But, as the evidence which was given upon this subject was both irrelevant and incompetent by way of a direct examination, the objections seem to be sufficient, although under other circumstances they might not be so, if the intimation contained in the decision of the case of McGean v. Railway Co., 22 N. E. Rep. 957, (not yet officially reported,) is to be followed. The witness Fox, who was afterwards examined upon this capability of the use of the property, was asked to what it might be advantageously and economically devoted if the elevated railway were not there; and to this inquiry the further objection was added that it was speculative. And this latter objection did specifically indicate the ground on which his evidence should have been rejected, even if that was not disclosed by the other part of the objection. This was overruled, and the defendants’ counsel excepted; and the witness was allowed then to proceed and give evidence as to the uses which could be made of the property in very much the same manner, though with greater brevity, than the other witnesses who had been interrogated upon the same subject. If, therefore, the preceding objection was too general to be of service to the defendant, this additional objection to the taking of the same evidence from this witness relieved the case of that deficiency; for the evidence was speculative, and should not have been received, as it must be assumed to have been, to influence the action of the court in the disposition of so much of this controversy as required the amount to be determined which the defendant should pay for the continuation of its structure, and the use of it as a railway. The evidence in this manner received was prejudicial to the defendants’ rights, and its introduction in the case may be assumed to have been the cause of the large allowances directed by the judgment to be paid by the defendants.

The plaintiff was also allowed to prove by the witnesses Mead, Macy, O’Reilly, and Waterlow the manner and extent to which other property was deemed by them to have been injured by the construction and operation of this elevated railway. This property was in no manner connected with that owned by the plaintiff. It was situated upon the same avenue, but owned by other and different owners; and what injury had been sustained by these parcels of property in the construction and use of the railway had no possible connection with either piece of property owned by the plaintiff. This evidence was objected to by the defendants’ counsel as immaterial, irrelevant, and incompepetent, and it very clearly was irrelevant to every inquiry included within the issues framed in this action; and the exceptions taken to the decisions of the court allowing this class of evidence to be given were well taken. What this evidence tended to prove was the injuries and losses sustained by other persons, and those injuries and losses may have been precisely what they were stated to have been without in any manner advancing or affecting the right of the plaintiff to the compensation claimed in its behalf. This evidence introduced into the controversy distinct and independent subjects, in no way, either directly or indirectly, relating to the issues in this action; and the exceptions which were taken to the decisions allowing it to be given appear, therefore, to be well founded.

Other evidence was also given, concerning the misconduct of the men who were employed in the service of the company, and other annoyances resulting from the operation of the railway, not affecting the light, air, or approach to the property bounded upon the avenue, or to any disturbance or interference with it arising from the acts of the defendants, or the construction of the railway and stations, or their use or operation in the business of the railway itself. These rulings, and the evidence permitted to be given by them, affect the foundation upon which this judgment has been placed, and may well be supposed to have in part resulted in the very large allowances directed by the court to be paid to avoid the issuing of a permanent injunction.

It has been urged that the determination of the court fixing the amounts to be paid is not final upon the defendants', and that they may still proceed, under the statute of the state, to appropriate these easements to the uses and purposes of their railway, and for that reason the judgment itself is not appealable. The authorities which have been cited in support of this position have been consulted, but not found to maintain this objection. But, on the contrary, title 4, c. 12, Code Civil Proc., has provided generally for an appeal from a final judgment recovered at the special term, and this is such a judgment. Upon the whole case, this judgment should be reversed, and a new trial ordered, with costs to the defendants to abide the event. All concur.  