
    Ellen R. Randall et al., as Executors, etc., Resp’ts, v. New York Elevated Railroad Company et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 16, 1894.)
    
    1. Appeal—Case—Statement.
    A statement that the case “ contains all the testimony taken upon the trial of this action,” is not equivalent to a statement that it contains all the “evidence.”
    2. Same—Evidence.
    Where, in an action against an elevated railway for damages to abutting property, no harm results to the appellant from an error in the exclusion of evidence, the judgment will not be reversed.
    Appeal from a judgment in favor of plaintiff.
    The opinion of Charles N. Morgan, referee, to whom the cause was referred, is as follows :
    To the Supreme Court: This is one of the ordinary actions .brought against the elevated railroad companies for an injunction to restrain the defendants from maintaining and operating their road in Third avenue in front of the premises of the plaintiffs, and to recover damages for injury done to the premises in the past througli the building and maintenance of such road. The principal questions litigated before me were as to the amount of past damages suffered by the plaintiffs; that is, loss in rentals, and the extent to which the fee value of the property had been depreciated or affected by the taking of the easements of light, air, and access whicli were appurtenant thereto. The property in question is situated on the easterly side of Third avenue, about twenty-five feet southerly from 45th street, and is known as. Nos. 717 and 719 Third avenue. The lot has a frontage of thirty seven feet seven and inches, and a depth of eighty feet. There are erected on the lot two four-story brick buildings, having each a store on the first floor, the floors above being occupied as tenements, one family on each floot. There are six rooms on each floor. The buildings are sixty feet in depth, and were built in about the year 1870. Since the erection of the buildings they have been continuously occupied in the manner, and for the purposes, above described, the first floor being used and occupied as a store, and the floors above as tenements. The tenements are of the class that were built in 1870, and have few of the modern conveniences which are possessed by apartments of a corresponding class built in later years. They have gas and cold water in the kitchen, but not elsewhere on the premises. Two of the six rooms front on the avenue, and two look to the rear. There are two dark rooms, which are not lighted by air shafts, as in the more modernly constructed houses, but receive all their light from the adjacent rooms and from the halls. The elevated structure passes through the street in front of these premises, the westerly track of which is erected on columns, the nearest of which, standing in front of the premises, is thirty-seven feet and ten inches from the house line, and the nearest point of structure to the stoop line is about thirty-one feet. The height of the column is fourteen feet eight inches above the pavement, and is a square, latticed, iron column, eighteen inches east aud west, and fifteen inches north and south. Upon the top of the columns there rest iron trusses three feet in height, upon which trusses are placed the wooden ties supporting the track. Outside of the track, and on the easterly side, there is a footpath extending five feet four inches outside of the rail. The cars which pass along this structure are about twelve feet in height. The level of the track is somewhat above the center of tire first apartment,—that is, above the center of the window,— and the top of a passing car is above the sill of the second story. The width of the elevated structure, from the outside of the footpath to the end of the ties, is eleven feet and six inches. The building of the road was commenced in the year 1877, and was' completed and commenced operations in 1878. Evidence was presented showing that the structure and the passing trains obstructed the light which would otherwise reach the premises, especially the stores, and that, in operating the road, smoke, dust, and. cinders were emitted by the passing trains, and came into an,d upon the premises. There was also some evidence showing, or tending to show, that the noise of the passing trains rendered the premises objectionable for occupancy. The plaintiff, for the purpose of showing that damage had resulted to the property through the acts of the defendant, called witnesses who testified as to the-rentals received from the property prior to and subsequent to the building of the road. The witness Hall testified that he collected the rents from 1871 to 1875, and the witness McIntyre testified that he collected the rents from 1876 to the present time. From the testimony of these witnesses, the rentals appear to have been as follows:
    1871 to 1875.
    Stores. Apartments. ' $2,000 $2,120
    1876 .......
    1.800 1,928
    1877 .......
    1.800 1,928
    1878 .......
    1,800 1,928
    1881 to 1893
    1,440 1,344
    The total rentals in 1875 for both buildings were $4,120, and the total rental for both buildings in 1893 was $2,784, showing a decrease in rental of $1,336, or about thirty-two per cent. It appears, however, from the testimony of the witness Freund, that the ratio of rental to fee value in 1873-75, in this part of the city, was ten per cent., and that'the present ratio of rental to fee value is seven and one-half per cent. Davis, a witness called on behalf of the defendant, testified to the same effect. It seems to me, therefore, in view of this testimony, that a certain portion of the reduction in rentals above shown is accounted for by the decrease in the ratio of rental to fee values. Such decrease being twenty-five per cent., the decrease in rentals due to this fact alone, had the value of the property remained unchanged, would have been $1,030, so that the normal rent which, under this rule, might be expected to be realized from the property under this changed condition of rental value, would be $3,090.
    But the testimony discloses another factor which has operated in the reduction of rents, and that is the decrease in the value of the buildings erected on the premises. The witness Freund testified that the present value of the buildings was from $11,000 to-$11,500, and the same witness testified that in 1872 they were worth $16;000,—a decrease in the value of the buildings, from wear and tear, of $4,500. He further testified that the value of the whole property in 1874'was $41,000. Brom this amount deduct $4,500, amount of deterioration in buildings, and it leaves $36,500, which he testifies is about the present value of the property. Seven and one-half per cent.- of this reduced valuation •would give a normal rental of $2,737._50; the actual rental received, as shown above, is $2,784. This indicates that there has been no decrease in the rental value of the property since 1873—75. That the fee value has also remained unchanged, except so far as it has been affected by the deterioration in the buildings themselves, appears from the testimony of the witness Freund. He testifies that the present value of the property is about $37,000, and that in 1873 the value of the ground without the buildings was $25.500, and that the value of the buildings themselves at that time was about $16,000, making a total value of the premises at that time about $41,000. From that amount deduct what he testified has been the deterioration in thewalue of the buildings, $4,500, and we have $36,500 as the value of the property to-day. I am constrained, therefore, to the conclusion, from the evidence, that whatever reduction there has been, either in the fee value or the rental value of the property in question, has been due to two causes solely: First, the general reduction that has taken place in the ratio of rentals to fee value; and, second, the deterioration of the property through natural causes.
    It remains, therefore, to inquire whether property on the side streets adjacent to the property in question has advanced in value since a period of time previous to the building of the road, and whether the property in question has increased in value to the same extent, and, if not, whether its failure so to do is attributable to the presence and effects of the elevated railroad. Storclc v. Met. Ml. R. Co., 131 E. Y. 514; 43 St. Eep. 730, and Becker v. Met. Ml. R. Co., 131 E. Y. 509; 43 St. Ecp. 726. In- determining this question I do not think it proper to consider merely the rentals and the course of value of the property in suit, as disclosed by the evidence, for the reason that it is impossible to tell what adventitious circumstances or conditions may have operated to produce the result disclosed. I deem it safer and juster, for the purpose of determining the effect of the building and the operation of the road through Third'avenue upon the property abutting on the avenue, to consider the general course of rentals and values of property in the immediate vicinity, that there may be eliminated from the conclusion those factors and agencies, other than the road itself, the effect of which has been special and peculiar to the particular property. Testimony was offered by the plaintiff and the defendant showing the course of rentals of a large number of properties situated on Third avenue and in the immediate vicinity of the property in question, such inquiry having been limited by me to property situated within ten blocks of the property in suit. The witness Freund, called on behalf of the plaintiff, testified as to the course of rentals of various properties on third avenue, and in one instance he gave the history of the rentals of an entire block situated on the west side of Third avenue, lying between 47th and 48th streets, from 1874 down to the present time, the property being known as numbers 760, 762, 764, 766, 768, 770, 772, and 774 Third avenue. This block is situated in the vicinity of the property in question, and was built shortly before the building of the road, and I think may be fairly and properly assumed to furnish approximate, if not accurate, data from which to determine the effect of the bnilding of the road and its operation upon property situated as are the premises in question. The uses to which this block has been devoted since it was built have, been substantially the same as those to which the property in question has been applied ; that is to say, stores on the first floor, with apartments on the floors above. .'In 1874-76 the' total annual rentals of the block above mentioned were $33,498, and in 1893 the total annual rentals were $29,006, showing a decrease in annual rentals, during the period mentioned, of $4,492, •or about thirteen per cent. There was no evidence to show that the property in question had been affected in any particular manner by the act of the defendant, or that it had suffered any greater loss by reason thereof than other similar property similarly situated in the vicinity. The reduction in rentals of the property in question for the same period appeals, as above shown, to have been thirty-two per cent., but I think that the inference is inevitable that such property must have been affected by the causes or conditions which.were not general in their effect, and. the estimate of thirteen per cent, more accurately measures the reduction of rentals on Third avenue, and more properly expresses the real facts. Evidence was also offered showing the course of rentals of property in the side streets and avenues- in the vicinity of the property in question, but not on the line of the road, and presumably not affected unfavorably by its building or operation. The witness Dage, called by fl-he defendants, testified as to the course-of rentals of the property known as Numbers 399 to 413 Lexington avenue, inclusive; he also testified as to the premises Nos. 132 to 140 East 53d street; and the witness Pierrie, called by the defendants, testified as to the rentals of the premises 309 East 52d street. The total annual rentals of the foregoing properties, in the yeta 1874-78, were $35,076. The present annual rentals of the same property are $32,242, showing a decrease in rentals of about eight per cent. This would indicate that property situated off the line of the elevated roads in the vicinity of the poperty in question has experienced a less diminution in actual rentals than had been experienced by property on Third avenue and abutting'* on the road, the difference in reduction being about five per cent. The evidence discloses no other reason for this difference except the effect of the road upon the property abutting upon the street along wiiich it is built,f, which effect is shown to be an interference with light and access to, and the emission of dust, cinders, and ashes into and upon, the plaintiff’s premises; and I am of the opinion that to the extent of about five per cent, of the annual rentals of the property in question priorato the building of the road, which were $44,120, the plaintiff has suffered a reduction in rental value, due to the erection and maintenance of the road, and the appropriation thereby of the easements of light, air, and access, or about $200 annually,' which amount the plaintiffs herein, executors of the estate of Mary Pettigrew, deceased, are entitled to recover for six years prior to the commencement of this1 action, and down to the date of the death of their testatrix, Mary Pettigrew, which occurred on the 4th day of December, 1892. It would appear, also, from the foregoing and other evidence in the case, that while the fee value of the property, has not actually decreased since the building of the road, and, on the contrary, p'roperty on Third avenue has generally increased in fee value, it has not shared in the general increase of values which property situated in the side streets and avenues adjacent thereto has experienced during the same period. It has been shown that the general reduction of rentals on Third avenue in this vicinity is about thirteen per cent.; but, since the ratio of rentals to fee value has béen reduced from ten. per cent, to seven and one-half per cent, (that is, twenty-five per cent.) through, causes having no relation to the building or operation of the road, it follows that there has been an actual increase of rentals of twelve per cent., and that the actual value of the property producing such rentals must have increased sixteen per cent, in order to yield the same. It also appears, as shown above, that the general reduction in annual rentals of property situated on adjacent streets has decreased eight per cent, or an increase of productivity under the changed ratio of seventeen per cent., from which it follows'that the actual value of the property producing such rentals must have increased twenty-two and two-thirds per cent, in order to yield the same, indicating that such property has increased in value six and two-thirds per cent, more than property affected by the road, for which difference no reason is shown other than the effect above referred to, which the building and operation of the road has had upon the property abutting pn its line. Some portion of this difference is doubtless due to the depreciation in the value of the property occasioned by the noise of operating trains over the road. What proportion, however, is somewhat difficult of determination from the evidence. I think that twenty-five per cent, is a fair amount to be deducted from the total damage appearing, as the allowance to be made for the injury occasioned by noise alone. Assuming, therefore, that the actual present value of the property is $36,500, which I think may be fairly inferred from the evidence, it would appear, for the reasons above stated, that such value is five and one-third per cent, less than it would have been except for the building and maintenance of the road; that is to say, except for this cause, the property would have been worth $38,500, instead of $36,500, showing a damage to the fee from the taking of the easements above mentioned of $2,000. Substantially the same result would b'e reached if it were sought to measure the loss in fee value by capitalizing the loss in annual rentals. Such loss, as above shown, was $200, from which deducting twenty-five per cent, for the noise, leaves $150, which is seven and one-half per cent, of $2,000.
    There was but little evidence presented showing, or tending to show, that the increase in fee values of property on Third avenue and in the vicinity was by reason of th,e benefits resulting from the building and operation of the road. Whatever benefits resulted from the presence of the road to the property in question, or to other property on Third avenue, is necessarily included and considered in the analysis which I have attempted to make of the course of rentals and fee values of such properties. I am not satisfied that the increase in fee values off the avenue has been in any degree occasioned by the road. The whole section was practically built up prior to the coming of the road, and there, is no satisfactory evidence, to my mind, that the road added anything to the value of property off Third avenue, either by increase of traffic or otherwise. For these reasons I am of the opinion that the value of the plaintiff’s easements taken by the defendants in the building and maintenance of their road, measured by the effect which their taking has produced upon the property to which they are appurtenant, is $2,000, which amount the defendants should pay the plaintiff within ninety days, upon receiving a conveyance or release of the easements and property'so taken, and in default thereof the injunctive relief prayed for should be granted. Some testimony was taken showing sales made of property along the line of Third avenue in the vicinity of the property in question, and also sales made of property in adjacent streets, both before and subsequent to the building of the road. Expert testimony was also offered as to the value of property similarly situated for the same period. An analysis of that testimony tends to confirm, in my opinion, the result which I have reached as above set forth, and I do not consider it important that I should, in this opinion, further comment upon such testimony. I am persuaded from the evidence that the value of property in this section of the city is fairly and accurately measured by its productivity. It has been substantially built up for many years. It has no speculative or commercial value other than that which is determined and fixed 'by its power to produce income, and any other measure of value based upon opinions of experts, unrelated to actual transactions, applied to property of this character, produces results which, to my mind, are necessarily speculative and unsatisfactory.
    
      B. L. Maynard, fop app’lts; Eugene D. Hawkins, for resp’ts. •
   Per Curiam.

This is the usual action brought by a property owner to obtain an injunction nisi. There is no statement in the case on appeal that it contains all the evidence, the nearest approach thereto being one that it “contains all the testimony taken upon the trial of this action.” .That the latter expression is not the equivalent of the former has been many times held, and lately in the case of Koehler v. Hughes, 73 Hun, 167; 57 St. Rep. 131, where the authorities are reviewed, and wherein, as repeatedly before, it was held that, where the case does not contain all the evidence, this court is precluded from reviewing questions of fact.

The only questions of law urged upon our attention are those , having reference to the admission and exclusion of evidence, and two motions made to dismiss the complaint—one at the end of plaintiff’s case, and again when both sides had rested. In the light of the exhaustive opinion of the referee, which shows that he neither misapprehended nor misapplied the law bearing upon the questions involved in this class of litigation, his findings of fact and conclusions of law seem to us to require no further comment, justifying, as they do, his decision.

Upon the evidence, the only serious question relates to the exclusion of a question asked of one of defendants’ expert witnesses, as follows: “Is it a fact that apartments in bank buildings bring a higher figure than they do in others ? ” Notwithstanding the fact that the plaintiffs had adduced evidence, over defendants’ objection, as to the rental history of a bank building on the corner of Forty-seventh street and "Third avenue, the plaintiffs’ counsel objected to this question as immaterial aud irrelevant, and then specifically upon the ground that evidence as to bank buildings •was incompetent. This objection was-sustained, and we think erroneously; and, if there were other similar errors appearing in this record from which we could see that they in any way affected the judgment, it would be our duty to reverse it. It always comes with poor grace from counsel who themselves have got in evidence of a particular kind, over objection, to attempt to exclude the introduction of similar testimony when offered on their adversary’s behalf to explain or offset that first admitted. Where, however, as here, it can be clearly seen from the opinion of the referee, and the findings and conclusions made by him, that no harm has resulted to defendants, then should the principle be applied which is so well expressed in Steubing v. N. Y. El. R. R. Co., 138 N. Y. 658; 53 St. Rep. 186, as follows:

“ There is considerable difficulty attending the trial of this class of cases, and a judgment should not be reversed if, upon the whole record, we can see that no harmful error was committed, and that the proper principle of law was not misapprehended or misapplied.”

Our conclusion is that the judgment appealed from should be affirmed, with costs.  