
    (22 App. Div. 511.)
    RORKE et al. v. KINGS COUNTY EL. RY. CO.
    (Supreme Court, Appellate Division, Second Department.
    November 30, 1897.)
    1. Eminent Domain—Elevated Roads—Obstruction of Light.
    The fact that an elevated road interferes with and excludes from a building any light it would otherwise have is a cause for injunctive relief if any-substantial damage results; otherwise not. It is for a plaintiff seeking damages on that account to establish such pecuniary damage.
    2. Same—Damages Recoverable in Equity.
    In an abutter’s action in equity against an elevated railroad company, which has acquired the legal right to construct its railroad in the street, if it appears that no fee damage has been sustained, there can be no recovery for damages suffered through dust, soot, cinders, and other causes attributable to the operation of the railroad, which, in the absence of support for injunctive relief, are the subject of an action at law only.
    8. Sams—Evidence op Damage.
    In an action by an abutting owner against an elevated railroad company for injunctive relief, a witness for defendant, who qualified as an expert, after testifying that property in plaintiff’s vicinity had decreased in value, was asked, “What has been the cause of decrease?” and answered, “The moving of business.” Held admissible, as showing a general effect caused by the maintenance and operation of the structure upon abutting and neighboring properties.
    Appeal from special term, Kings county.
    Action by Edward Rorke and James Rorke against the Kings County Elevated Railway Company. From a judgment dismissing the complaint on the merits, plaintiffs appeal.
    Affirmed.
    Argued before GOODRICH, P. J., and CULLEN, BARTLETT, BRADLEY, and HATCH, JJ.
    James A. Sheehan (Stephen M. Hoye on the brief), for appellants.
    Welton C. Percy, for respondent.
   BRADLEY, J.

The plaintiffs, by this action, seek injunctive relief, founded upon the charge that the defendant, by the maintenance and operation of its railroad, has invaded their easements of light, air, and access, or some or one of them, appurtenant to their premises, situated on the easterly side of Fulton street, in the city of Brooklyn. The defendant’s railway was constructed in Fulton street in 1888, -and since then has been operated. In the year 1890 the plaintiffs became the owners of the premises in question, which were then an inside lot, having a frontage of 28 feet on Fulton street, and a depth •of about 97 feet, and there was a business building upon it. In 1892, by condemnation proceedings taken by the trustees of the New York and Brooklyn Bridge to widen Liberty street, 40 feet of the rear of the lot was appropriated. On this rested the rear portion (which had to be taken off) of the building. Thereupon the building was repaired and somewhat remodeled by the plaintiffs. It then ceased to be an inside building, and fronted, not only on Fulton street, but on Liberty street, and on what was known as a “plaza.” The structure of the building is of brick, and it has three stories. The first one is occupied as a dry-goods store, and the second story for a printing office. It appears that the light is somewhat affected by the passage of the cars, and by the stoppage of them at the station on the opposite side of the street; and the evidence tends to prove that, in consequence of dust, soot, and cinders from the moving engines and trains, the windows in front on Fulton street have to be kept closed. Those in the store fronting on the street are large plate-glass windows for the showing of goods, as is quite usual in dry-goods stores. The fact that the maintenance and operation of the railroad interferes with and excludes from the building any light which it otherwise would have the benefit of is the consequence of the invasion of that easement of the plaintiffs in the street, and is a cause for injunctive relief if any substantial damage results to them from such invasion, otherwise not; and it was for the plaintiffs to establish by evidence such pecuniary damage. O’Reilly v. Railroad Co., 76 Hun, 283, 25 N. Y. Supp. 758; Id., 148 N. Y. 347, 42 N. E. 1063. The plaintiffs proved that, by the terms of a lease which expired in 1888, the annual rent of the building was $4,500, and gave evidence tending to prove that, since they purchased the premises, the rent received for them has been much less; and a witness called by the plaintiffs as an expert testified that the premises had greatly depreciated in value since the railroad was constructed, while property in the blocks next to Pulton street on Montague and Pierrepont streets, which approach Fulton street from the west, have during that time appreciated from 50 to 100 per cent. This, without anything further appearing, would indicate a depreciation in the fee value of the premises, occasioned by the railroad.

It appears that in 1890 the plaintiffs purchased the property at public auction for the sum of $18,300. This evidence was competent as bearing upon the question of the value of the property at that time. Insurance Co. v. Nelson, 78 N. Y. 137; Guiterman v. Steamship Co., 83 N. Y. 358. They received, as the result of the proceedings taken to condemn the rear 40 feet in 1892, $18,000. It is not necessary to-inquire whether that fact could otherwise be treated as bearing upon the question of value. It cannot now be so treated, because the evidence of it was not.received for that purpose. The evidence of the witness before referred to, so called by the plaintiffs as an expert, was-that the value of the 40 feet so taken from the rear of the lot was $20,000. The evidence, as given by a witness on the part of the defense, was that the property, including the premises in question, on Fulton street, in that locality, had depreciated in value in the last 8 or 10 years, and that property on Washington street, which is a street substantially parallel with Fulton street, in that vicinity, and next easterly from it, has also depreciated in value in the same time. This property on Fulton street is below the city hall. The witness-says' that the cause of the decrease in value of the property on the street below the city hall was the moving of business from there to-above there on the street; that the removal of the business commenced 12 years ago; that the property on the street above the city hall had increased in value several hundred per cent, in the last 5- or 6 years; and that, in his opinion, the construction and operation of the defendant’s railroad has not affected injuriously the rental and fee value of property on Fulton street, in the vicinity of the plaintiffs’ property. There is no evidence to the effect that the plaintiffs’' easements of air and access have been substantially invaded or retrenched by the railroad or its operation; and the only inquiry for the-purposes of the equitable relief sought by the plaintiffs is whether the-plaintiffs suffered pecuniary damage by any invasion of their easement of light by the defendant’s railway. If no such damages have-been sustained, it is not important for the purposes of this question whether the plaintiffs have or not suffered damages by dust, soot, and cinders, and other causes attributable to the operation of the railroad, since they, in the absence of support for injunctive relief, are the subject of an action at law only. A different question would be presented if it had not appeared, as it did at the trial, that the defendant had acquired the legal right to construct its railroad in the street.

The trial court found that there was no fee damage to the property in question occasioned by the erection and operation of the railroad. When this conclusion was reached, there was no legitimate occasion for the court to consider the question of past damages, since they could be recovered in this action only as incidental to the equitable relief dependent upon the establishment of fee damages. The evidence upon the subject of such damages presented a question of fact; and, whatever view we might have taken of it if the trial had been heard by us originally, the conclusion of the trial court cannot properly be overruled on this review, unless it can be seen that it was clearly against the weight of the evidence. This, in the view which could have been taken of the evidence at the trial, does not satisfactorily appear, and therefore such conclusion upon the question of fact is deemed supported by the evidence.

After the witness who was qualified as an expert had testified that the property in this vicinity on Fulton street had decreased in value within the past few years, he was asked, “What has been the cause of decrease?” and after the objection as incompetent, immaterial, and irrelevant was overruled, and exception taken by the plaintiffs’ counsel, the witness answered, “The cause of it has been the moving of business from below the city hall to above the city hall;” and he further testified that there had been such removal of the business. This question called for the expression by the witness of a conclusion quite comprehensive. His opinion, sought by it, was, nevertheless, founded upon his knowledge and observation; and by those means the witness was able to express his opinion of a fact which, it may be, would be difficult to prove in any other manner. If so, it may have been admissible from necessity, which is the general principle upon which opinions of witnesses are permitted as evidence. While, as an original proposition, I should have had some doubt about the admissibility of the evidence, the ruling, seems to come within judicial authority reasonably applicable to the question presented by the exception. In Hunter v. Railroad Co., 141 N. Y. 261, 36 N. E. 400, it was held permissible for a witness to answer the question, “In your judgment, was there anything in the condition of Beaver and Water streets which should induce the upward rise in values greater than would have existed in Pearl street had there been no elevated railroad?” also the question, “Would existence of such a structure and the running of trains as described affect the rental value of the property in front of which it was constructed?” and the further question, “Would it affect it favorably or unfavorably, in your judgment?” In delivering the opinion of the court, Judge Gray said: “We think there was no error committed in overruling the objections. Within our decisions, in the course of this , elevated railroad litigation, evidence is admissible to show the general effects caused by the maintenance and operation of the elevated roads upon abutting and neighboring properties.” The view of the court in that case seems to bring the opinion of a witness as to what has been the cause of the depreciation in a particular vicinity on a street in which the elevated railroad is operated within the principle of the inquiry for his opinion whether and how the maintenance and operation of such a railroad has affected the property in such locality; and, within the rule applied in that case, the evidence was admissible. The subject of opinions of experts, and the limitations upon their admissibility, in the elevated railroad cases, have had much judicial consideration, and such rules have been adopted as were deemed necessary to the proper presentation by evidence of the facts to be determined. In Roberts v. Railroad Co., 128 N. Y. 455, 28 N. E. 486, the subject received much discussion, and the question there presented was determined by a divided court. Whatever impression may be derived from the general views expressed in the prevailing opinion there, we think the principle applied to the specific question for consideration in the later case of Hunter v. Railroad Co., supra, may be invoked to support the ruling of the trial court in the present case. No further question requires consideration.

The judgment should be affirmed. All concur.  