
    Catherine M. Bremer, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    First Department,
    March 15, 1907.
    Eminent domain.—injury to easements by railroad viaduct —failure to show damage.
    In an action to recover damages to the rental value of premises by the maintenance of a railroad viaduct in Park avenue in the city of Mew York, it appeared that there had been no diminution in the Z’ental value of the upper portion of the building, and that the vacancy of the lower portion antedated the pei'iod for which damage was claimed, and was not caused by the building of the viaduct hut by the passage of the Baines Law, which affected the value of the premises for saloon purposes. On all the evidence,
    
      Held, that an award of damages was not warranted.
    Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of October, 1906, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.
    
      Alexander S. Lyman of counsel [Ira A. Place, attorney], for the appellant.
    
      James C. Bushby of counsel [Bushby & Berkeley, attorneys], for the respondent.
   Clarke, J.:

This action was commenced on the 5th day of July, 1901, for rental damages from February 16, 1897, to June 26, 1900, for the alleged maintenance and use by the defendant of the viaduct railroad structure in Park avenue opposite premises then owned by the plaintiff, situated on the northwest corner of Park avenue and One Hundred and Thirty-second street. The lot has a frontage on Park avenue of twenty feet and extends along One Hundred and Thirty-second street seventy-five feet. The building is four-story brick with an extension in the rear, two stores on the ground floor, five dwelling rooms on the second floor and six dwelling rooms on the third and fourth floors. The court found the rental value was depreciated from February 16,1897, when trains were first operated on the structure, to June 26, 1900, when the premises were sold under foreclosure,-in the sum of $1,785, or at the rate of $530 per year.

Prior to the viaduct improvement the railroad structure opposite the premises consisted of a depressed cut with retaining walls and surmounted by a parapet three feet high, said structure being about sixty-three feet in width from out to out of the retaining walls at the surface of Park avenue. Four tracks were laid in said structure, the base of rail being about eighteen inches below the surface of Park avenue.- The depressed cut bisected Park avenue between One Hundred and Fifteenth street and the Harlem river and entirely prevented access from one side of the avenue to the other except over bridges. The bridge for teams and pedestrians was at' One Hundred and Twenty-ninth street and bridges for pedestrians only at One Hundred and Thirtieth and One Hundred and Thirty-first streets. The extreme width of the viaduct structure opposite plaintiff’s south line was sixty-two feet six inches and.at the north line sixty-two feet. The space, therefore, occupied in the avenue by the new structure is less than that occupied by the previous depressed cut structure. The extreme height of the structure opposite the premises is twenty-two feet four inches above the grade of Park avenue. The nearest portion of the structure is distant from plaintiff’s premises forty-four feet ten inches at the south line and forty-seven feet eight and one-half inches at the north line. The avenue opposite the premises, formerly occupied by the depressed cut, has been filled in, graded and paved, and is now a portion of the surface of Park avenue.

Charles Henry Hall was the common source of title of the plaintiff’s predecessor in title, and the Hew York and Harlem railroad, which corporation acquired from said Hall, then the owner .of the bed of Park avenue in front of plaintiff’s premises, by a deed, a strip of land twenty-four feet in width, extending along the center line of Park avenue, for the purpose of constructing and operating its railroad thereon, with the right to slope any embankment or excavation of its railroad structure to the exterior lines of said avenue as then laid out on. paper.

The learned trial court excluded from evidence the said deed from Hall to the Hew York and Harlem Railroad Company. It also excluded chapter 702 of the Laws of 1872; chapter 907 of the Acts of Congress of 1890 chapter 339 of the Laws of 1892; chapter 548 of the Laws of 1894; chapter 613 of the Laws of 1898, and chapter 729 of the Laws of 1901, which exclusions were duly excepted to.

The claim in this case being confined to damages .caused by a diminution of the rental value from February 16,1897, to June 26, 1900, by reason of the change of the railroad structure from a cut eighteen inches below the grade of the street, which completely cut off one side of the avenue from the other, to an elevated structure about twenty-two feet high, and a transformation of the surface of the street from a cut to a paved street allowing access in all directions, requires an examination of the evidence to see whether it sustains the judgment rendered. The best evidence of the rental value is the amount of the actual rents received. If the change from a surface to an elevated railroad inflicts damage upon abutting, property it would be natural to find that portion of the property especially invaded by the structure suffering therefrom.. Although by this elevation of twenty-two feet the trains have been brought immediately opposite the windows of the living portions of the premises, it appears conclusively in the evidence that the rentals of such portion have not been affected at all, but that the same rents were paid for all the. living apartments above the ground floor throughout this period of three years that had been paid theretofore for the same apartments. It does appear that the ground floor, access to which has now been made possible from all directions, has been vacant during this period, but it had also been vacant for more than two years prior thereto. It was formerly used as a liquor saloon and the learned court has found as a matter of fact that the passage of the Raines Law-in'1896 (Laws of 1896, chap. 112) injuriously affected the rental value of the corner store of.the plaintiff’s premises for saloon.purposes.

Since all the loss of rentals, as proved, is confined to the ground floor and as the vacancies therein long antedated the period for which this defendant is here sought to be made responsible, and as there is another cause found by the court which injuriously affected the rental value of this ground floor property, it is impossible to find a proper basis in the evidence for the amount of damages awarded in this case. "

This, taken with errors committed in thé exclusion of evidence, leads to a reversal of the judgment and the ordering of a new. trial, with costs to the appellant to abide the evenh

Patterson, P. J., Ingraham and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. Order filed. 
      
       See 26 U. S. Stat. at Large, 426 et seq.— [Rep„
     