
    Emeline M. Gray, Respondent, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants.
    
      Eminent domain—what evidence is insufficient to establish, a cause of action.for damages against an elevated railroad by an abutting owner in a city street.
    
    Where a corner property in a city has, as a whole, increased in rental value since the construction of-an elevated railroad on an avenue upon which a portion of the premises fronts, in which portion the increase has been some fifty per cent,' while the rental value of that portion facing on the side street, farthest away from the railroad, has barely held its own, and it is not shown what the property brought before the construction of the road, and no satisfactory standard is established by which to compare the .present with the past rents of the property, the owner cannot be'said to have established, by a fail-preponderance of evidence, a ca-use of action against the railroad company for damages, resulting from the construction of its road. ... ' ’
    
      Appeal by the defendants, The Yew York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 31st day of December, 1898, upon the decision of the court rendered after a trial at the Yew York Special Term.
    
      J. Osgood Nichols, for the appellants.
    
      Charles N. Strong, for the respondent.
   Barrett, J.:

This is the usual action for an injunction and damages, and practically the only question raised is whether the awards are sufficiently supported by the evidence. The property affected is Yo. 663 Yinth avenue, in the city of Yew York, on the southwest corner of Ninth avenue and Forty-sixth street, having a frontage of twenty-one feet six inches on the avenue and seventy-five feet on the street. There is a four-story building on the land, containing two stores on the ground floor, one fronting on the avenue and fifty feet deep ; the other fronting eighteen feet on Forty-sixth street and twenty-one feet deep.

The award for rental damages is $2,890. It covers the period from December 1, 1887, to May 12, 1898, and is at the rate of about $275 a year. Prior to 1881 the premises were occupied by the plaintiff, but the rents received from this year to the present are in evidence. In 1881 the total rent was about $2,680 a year, and it has increased annually about $300. This is largely due to a steady increase in the rent of the Ninth avenue store, which brought but $83.83 a month In 1881, but has rented for $112.50 a month since 1893. The rent of the Forty-sixth street store has increased somewhat (though to nothing like the extent of the other), but the rent of the flats has decreased. The basement fronting on Ninth avenue was rented in 1898, and the total rent for both store and basement was $125. Thus we start with the fact that the rent of that portion of the premises directly abutting on Ninth avenue, on which the defendants’ road is constructed, and which, it might be inferred, would be most severely affected, has increased fifty per cent, while the rent of that part "furthest removed has barely held its own or has actually declined. The apartments are doubtless to some extent affected, for they have windows opening on the avenue. If appears, however, that the entrance is upon Forty-sixth street, and that nearly one-quarter of the frontage is upon that street. But this is not true of the Forty-sixth street store, which does not abut at all upon the avenue. Certainly, the most that can fairly be claimed is that the property should be taken as a whole, and as thus taken it shows, for the most part, a steady increase.

To offset this fact, there is no evidence that the rent actually declined after the building of the road, for no pre-road rentals are in evidence, and we are forced to rely, for a standard of comparison, upon some estimates of the defendants’ expert Auld. He states that rental values on Ninth avenue' have decreased about twenty-five per cent since 1873, and the plaintiff’s case depends largely upon the accuracy of this statement. The statement is hot made specifically with reference to the premises in suit, though said to apply to “ property of this character.” Later he stated that the rental value Of buildings as a whole on Ninth avenue decreased twenty to twenty-five per cent since 1881. This clearly indicates the unreliability of his estimates as applied to this particular property, which in fact increased about twelve per cent during this period. There are numerous other inconsistencies and inaccuracies in his testimony. He stated that improved property on Ninth avenue has decreased at least ten per cent since 1881, but he says that the premises in suit were worth $32,000 to $32,500 in 1881, .and $35,000 at the time of the trial-—• that is, that they had increased nearly ten per cent ip value instead of decreasing to that extent. Again, he says that the value of such property as this decreased twenty per cent since 1873, but that the premises in suit were worth $29,000 in 1873 and $35,000 at the time of the trial. Some repairs, costing $9,000, were made in 1880, but deducting this sum from $35,000, we still have a decrease of but ten per cent instead of twenty; and when we consider that in 1898 the new building had been in use eighteen years, it is evident that even Auld’s estimate makes the value of the property at least as great as in 1873. The accuracy' of the witness’ mental calculations is well indicated by his statement, “ that store has increased from $80 to $112. That is about 20 per cent.” His figures, it will be perceived, just double his estimated percentage. A still greater discrepancy between his figures and his estimates of percentages occurs with ref erence to property on Ninth avenue north of Sixty-fifth street, which he says has increased sixty to seventy-five per cent since 1873. He gives the figures, namely, $7,000 for a lot in 1873, and $18,000 to $20,000 now, or an increase of one hundred and fifty to one hundred and eighty per cent, and over. Of what value is the statement of such a witness that rental values have decreased twenty-five per cent since 1873 %

It would serve no useful purpose to pursue the subject further. It is impossible to obtain any definite or reliable results from the testimony of this witness. It is not too much to say that his testimony is a bundle of inconsistencies and contradictions. And it comes directly in conflict with the few tangible facts of the case. In such cases courts have always shown great reluctance in allowing an award to stand. When we consider that the actual rents of the property have increased; that the part in closest contact with the road has increased by far the most; that it does not appear what the property actually brought before the road was constucted ; and that the estimates as to pre-road rental values, upon which the defendants are forced to rely, are of the most unsubstantial and unreliable character, it cannot well be said that the plaintiff made out a cause of action by a fair preponderance of evidence. This failure to- establish satisfactorily, either by tangible facts or opinion evidence, a standard with which to compare the present rents of the property, undermines the basis of the award. When we cannot ascertain how much the property in suit has lost or gained, the fate of neighboring property seems immaterial.

The award for fee damage was $2,000. Here, again, the plaintiff’s case depends upon the accuracy of Auld’s estimates ; and it is not necessary to refer further to the hopeless confusion in his estimates of fee values. In fact some of his clearest utterances make strongly in favor of defendants. He testifies that the value of a corner lot on Ninth avenue was $15,000 in 1877 and 1878; $12,500 in 1881, and $24,000 now. This is an increase of 60 per cent since 1877, and nearly 100 per cent since 1881. Such a marked increase is destructive of the plaintiff’s case.

It is contended that the defendants’ expert admitted a decrease in Ninth avenue values of twelve and a half per cent since 1878; but an examination of his testimony makes it plain that he was referring merely to the decline in and subsequent to 1878, due to the panic. He testifies explicitly that Ninth avenue property increased in value subsequent' to 1880 — the increase being practically the same as on Eighth and Tenth avenues.

■ Each case of this sort must depend largely upon its own particular facts. "Without considering at greater length a case in which no general rule of law.is involved, our conclusion is that justice requires ■a new trial of the' issues. The judgment should consequently be reversed and a new trial ordered, with costs to the appellants to abide the event.

Van Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellants to abide event.  