
    CAROLINE PARET, et al., Respondents v. THE NEW YORK ELEVATED RAILROAD COMPANY, Appellants.
    
      Action at law to recover damages to rental value of premises, and for depreciation infeevalue—When no recovery allowablef or depreciationin selling price—When next-of-lcin may not recover rental damages accrued during lifetime of former life tenant, no executor or administrator of decedent being joined in the action—Special findings of jury inconsistent with general verdict, which to prevail—Directing judgment at general term in favor ttf defendant upon special finding of jury.
    
    Hester Paret, the mother of plaintiffs, having a life estate in the premises in suit, which ahut on Greenwich street, in the city of New York, died December 20, 1882. The plaintiffs thereupon succeeded to the title as tenants in common, which they held until October 4,1883, when they sold the premises. On July 19, 1884, the plaintiffs brought this action at common law, the complaint setting forth two causes of action, (1) to recover the damages to the use or rental value of the said premises caused by the elevated railroad of the defendant in said street, from the date of the construction of said railroad in 1870 down to October 4, 1888, and (2) the loss in the selling value of said premises caused by said railroad as shown by the reduced price obtained at the sale. Neither the executor nor the administrator of Hester Paret was made a party to the action. The trial judge excluded the recovery of all damages accrued prior to July 19, 1878, applying the statute of limitations, and further instructed the jury to award to plaintiffs damages for “ such loss of the fee value of the property which they sold as was caused by the wrong-doing of the elevated railway in this case.” The jury were further instructed to bring in a general verdict, and in response to certain suggested special findings, which they were allowed in their discretion to make, rendered the following verdict: “The jury make answer to the special questions submitted to them as follows: (1) For the period from July 19, 1878, to December 20, 1882, with interest, if allowed, from July 19, 1884, to date, the interest to be stated separately, three thousand two hmidred and eight dollars, with interest from July 19, 1884, to date, $1,069. (2) For the period fromDecember 20,1882, to October 4,1883, with interest, if allowed, from July 19, 1884, to date, the interest to be stated separately, four hundred and twenty-six dollars, with interest from July 19, 1884, to date, $142. (3) The amount of loss, if any, to the fee value by the sale on October 4,1883, with interest from July 19, 1884, to date, if allowed, the interest to be stated separately, thirty-six hundred and thirty-four dollars, with interest from July 19, 1884. We have not allowed any damages as to rental value. (4) General verdict to be the aggregate of the above, or thirty-six hundred and thirty-four dollars, with legal interest from July 19, 1884; total, $4,845.”
    Counsel for defendant moved for judgment in favor of defendant upon the verdict, upon the ground that the verdict was against the plaintiffs upon the question of damages to rental value, damages to fee value not being recoverable in the action. The trial judge denied the motion and directed judgment in favor of plaintiffs for the entire amount of the verdict.
    
      Held, that the second alleged cause of action did not constitute a separate cause of action, but only a separate item of damage, and presents a claim for loss of fee or selling value which could not be recovered in a common law action for money only, and did not fall within the legal measure of damages in this case.
    In regard to the claim for rental damages accrued during the lifetime of Hester Paret, Held, that the plaintiffs had no personal right of action to recover such damages, and that the trial judge erred in holding, that the plaintiffs in their capacity as next-of-kin were entitled to recover such damages. The right of action is a personal asset accruing to the owner upon the happening of the injury. The executors or adminxstrators of Hester Paret were entitled to receive the damages sustained during her lifetime and to enforce their payment by action if necessary as part of the estate to be administered by them. The plaintiffs were without authority to maintain a suit for the recovery of such damages while the right of action therefor was vested in the executors or administrators.
    The only possible recovery by the plaintiffs herein was for the rental damages accrued between the date of the death of Mrs. Paret, December 20, 1882, and October 4, 1883, the date of the sale of the premises by the plaintiffs; but as the jury failed to find any damages as to rental value, the trial judge should have directed entry of judgment in favor of defendant upon the verdict.
    The practice pursued on the trial of submitting to the jury under section 1187 of the Code of Civil Procedure special questions of fact was perfectly regular. The special findings by the jury herein were, however, inconsistent with the general verdict and controlled the latter under section 1188 of the Code of Civil Procedure. Held, that the order denying defendant’s motion for judgment in its favor upon the verdict should be set aside and judgment entered for the defendant upon the verdict. The appeal from the judgment is dismissed without costs. As the defendant made no motion before the trial judge to set aside the judgment entered below, the general term will not take action with respect thereto upon its' own motion, but makes this disposition of the case without prejudice to a motion at special term by the defendant to set aside the same.
    If the case had been properly tried and an intelligible verdict rendered, a recovery for past damages accrued during the period of the plaintiffs’ ownership would have resulted. The decision of the general term should, therefore, be without costs.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.
    
      Decided April 14, 1892.
    Appeal by defendant from a judgment in favor of plaintiffs entered on the verdict of a jury, and from an order denying defendant’s motion for judgment in its favor on said verdict. The facts are sufficiently stated in the opinion of the court.
    
      Davies & Rapallo, attorneys, and Julien T. Davies and Brainard Tolles of counsel, for appellant, argued:—
    
      The trial court erred in denying defendants’s motion for judgment on the verdict. The practice pursued by the learned trial judge in submitting special questions of fact to the jury to be answered in conjunction with a general verdict was perfectly regular and is authorized by section 1187 of the Code of Civil Procedure. The verdict was a general one in favor of the plaintiffs, and was controlling, except so far as the special findings were inconsistent with it. Code of Civil Procedure, § 1188; U. S. Trust Co. v. Harris, 15 Super. Ct., 75. It was the duty of the court, however, to determine, at the trial, whether the special findings were or were not consistent with the general verdict, and in case they were inconsistent with it, to direct the entry of such judgment as was legally required by the special findings. Code of Civil Procedure, §§ 1188,1189 ; U. S. Trust Co. v. Harris, 15 Super. Ct., 75; Dempsey v. Mayor, etc., 10 Daly, 417. In this ease our contention is that judgment should have been directed in favor of the defendant upon the findings, because: (1.) The jury expressly found against plaintiffs as to the first cause of action. (2.) The second alleged cause of action was insufficient in law to support a judgment in plaintiffs’ favor.
    As to the first cause of action:—The plaintiffs in this case did not request that a verdict for nominal damages should be directed in their favor. They acquiesced in the instruction of the court to the jury, that in case the depreciation of rental value should be found to be due to other causes than defendant’s railroad, the verdict should be in favor of defendant on that issue. They have never in any manner attacked the verdict or appealed from the judgment which found against them on that issue. The decision of the jury on this issue was approved by the trial judge, and has not been questioned by either party. It is not for the plaintiffs, therefore, on this appeal, to attack this portion of the verdict as against the weight of evidence. Nor is it possible for plaintiffs to attack the verdict on the score of irregularity or ambiguity. If any criticism was to be made upon the form of the verdict, it should have been made at the trial, when it might have been remedied. Briggs v. Hilton, 99 N. Y., 517.
    But the verdict Avas neither irregular nor ambiguous. It is true that the question was not expressly put to the jury in Avriting, whether there were any damages sustained in respect to rental value. But that was one of the questions which the trial judge charged them at plaintiffs’ request, that it would be well for them to specifically pass on. It certainly is not open to plaintiffs to criticise the action of the jury in adopting a suggestion which the plaintiffs themselves requested the court to make to them. Moreover the jury had a right, according to the immemorial practice of common law courts and independent of any statute, to state in their verdict upon which of the two issues submitted to them their award was based. This portion of the verdict, though not responsive to any question specially submitted to them, has all the force of a special finding. This was so held in Fraschieras v. Henriques, 6 Abb. N. S. 251. The answers of the jury to the first and second special questions are not inconsistent with the finding that there was no loss of rental value. The jury were not requested to find the loss of rental value during the periods mentioned in those questions, but the damages caused by defendant’s railroad. The sums found as damages for these two periods, when added together, constitute the sum of $3,634, the very sum found to be the damage to fee value. It is clear, therefore, that the jury found that the fee damage was not produced all at once, but that the reduction Avas gradual, and they distributed it between the two periods specified by the court. Such findings were not unreasonable, and were very likely true in point of fact. With the legal proposition that it made no difference when the depreciation of fee value took effect the jury had nothing to do. They answered the questions put to them, literally and truthfully, to the best of their ability. No trace of ambiguity can be found in the verdict, unless it be assumed that the jury ought to have perceived, by some preternatural exercise of sagacity, that the words, “ damages caused by defendant’s railroad ” did not refer to the only kind of damages which they found to exist.
    
      As to the second cause of action:—The second cause of action, although separately stated and numbered, is really nothing more than the statement of a separate item of damages alleged to have resulted from the same wrongful acts of the defendant which form the basis of the first cause of action. Plaintiffs cannot derive two causes of action from the same act, merely because two species of damage result from it. Trask v. R. R. Co., 2 Allen, 331; Van Leuven v. Lyke, 1 Comst., 517; Howe v. Peckham, 6 How., 229. The controversy about this so-called “second cause of action” is, therefore, not really over the validity of the cause of action but over the measure of damages. That a recovery for loss of fee or selling value in actions of this nature is unwarranted has been many times decided. Uline v. N. Y. Central R. Co., 101 N. Y., 98; Pond v. Metropolitan El. R. Co., 112 Ib., 186; Ottenot v. N. Y. L. & W. R. Co., 119 Ib., 603; Tallman v. Metropolitan El. R. Co., 121 Ib., 119; Porter v. Metropolitan Elevated R. Co., 120 Ib., 298; N. Y. Elevated R. Co. v. Fifth Nat. Bank, 135 U. S., 441; Pappenheim v. Metropolitan El. R. Co., 40 N. Y. St. Rep., 445. Plaintiffs therefore stood in this situation upon the rendition of the verdict: As to the only item of damages upon which they were entitled to recover, the jury had found against them, and as to the item which the jury had found in their favor, it was not allowable, because not within the legal measure of damages. In such a situation it was the-clear duty of the trial judge to direct judgment to he entered for defendant upon the verdict. He having failed to do this, it is the clear duty of the general term to give that direction as to entry of judgment which the trial judge ought to have given. There is no need for a new trial because the verdict is free from error, and is not questioned or impeached by either party. The only errors complained of are subsequent to the verdict, and can be corrected without disturbing the verdict.
    'Talcott & Meyer, attorneys, and William A. Talcott of counsel, for respondents.
   By the Court.—Gildersleeve, J.

The defendant constructed an elevated railroad in the street in front of premises No. 405 Greenwich street, in the city of New York, in 1870; and soon after it commenced the operation of said road, which has ever since continued. The plaintiffs here seek to recover damages to the premises in question, caused by the maintenance and operation of said elevated railroad. Hester Paret, the mother of the plaintiffs, held the premises as life tenant until December 20, 1882, when she died. It will be assumed that the plaintiffs owned the fee to the premises during the life tenancy of Hester Paret. Subsequent to the death of Hester Paret, and on October 4, 1883, the plaintiffs sold and conveyed the premises, and on July 19, 1884, they commenced this action. No executor or administrator of Hester Paret was joined in the action, and the trial court held that the plaintiffs, in their capacity of next-of-kin, were entitled to recover damages sustained by Hester Paret in her lifetime. The plaintiffs’ claim herein was (1) for loss of rental value of the premises from the time defendant’s railroad was constructed to October 4, 1883, the date when plaintiffs sold the premises, and (2) for the loss sustained in a sale of the premises on October 4, 1883, in a depreciated condition at a reduced price by reason of the wrongful acts of the defendant in constructing and operating its railroad in front of said premises. Although the complaint purports to set forth two causes of action, the second alleged cause of action (being the second claim above mentioned) is nothing more than the statement of a separate item of damages claimed to have resulted from the samé wrongful acts of the defendant which formed the basis of the first cause of action.

Two species of damage, resulting from the same act, do not give two separate causes of action. Trask v. Railroad Co., 2 Allen, 331; Van Leuven v. Lyke, 1 Comst., 517; Howe v. Peckham, 6 How., 229. This view was evidently taken by the learned trial judge. In his charge to the jury, he said: Now, there are two elements of damag’e which have been presented to you in this case, one is the diminution of rental value, and the other is the diminution of the proper price which the plaintiffs claim would have been got at a sale for the fee of the property, but for the interposition of the elevated railroad.” Against the protest of the defendant, the trial judge instructed the jury to award to the plaintiffs damages for such loss of fee value of the property which they sold as was caused by the wrong doing of the elevated railway in this case.” In the charge to the jury no mention was made of two causes of action. On account of the Statute of Limitations, the plaintiffs’ recovery of rental damages was limited to the period between July 19, 1878 and October 4, 1883, the time of the sale of the premises by the plaintiffs. The jury was instructed to render a general verdict and to make in their discretion certain suggested special findings as follows :

The jury are to find what are the damages, if any, caused by defendant’s railroad, sub-divided as follows : (1) For the period from July 19, 1878, to December 20, 1882, with interest, if allowed, from July 19,1884, to date; the interest to be stated separately. (2) For the period from December 20,1882, to October 4,1883, with interest, if allowed, from July 19, 1884, to date ; the interest to be stated separately. (3) The amount of loss, if any, to the fee value by the sale of October 4, 1883, with interest from July 19, 1884, to date, if allowed; the interest to be stated separately. (4) General verdict to be the aggregate of the above.”

The jury, after deliberation, rendered the following verdict in writing:

The jury make answer to the special questions submitted to them as follows: (1) For the period from July 19, 1878, to December 20, 1882, with interest, if allowed, from July 19, 1884, to date, the interest to be stated separately, three thousand two hundred and eight dollars, with interest from July 19, 1884, to date, $1,069. (2) For the period from December 20, 1882, to October 4, 1883, with interest, if allowed, from July 19, 1884, to date, the interest to be stated separately, four hundred and twenty-six dollars, with interest from July 19, 1884, to date, $142. (3) The amount of loss, if any, to the fee value by the sale on October 4, 1883, with interest from July 19, 1884, to date, if allowed, the interest to be stated separately, thirty-six hundred and thirty-four dollars, with interest from July 19, 1884. We have not allowed any damages as to rental value. (4) General verdict to be the aggregate of the above or thirty-six hundred and thirty-four dollars, with legal interest from July 19, 1884; total $4,845.”

Counsel for defendant moved upon the minutes of the court and upon the verdict as rendered for judgment in favor of the* defendant, upon the ground that the verdict being against the plaintiffs upon the question of damages to rental value, and damages to fee value not being recoverable in this action, the defendant was entitled to judgment. This motion was denied and exception taken. On this verdict judgment was entered awarding the plaintiffs the sum of $5,333.83 damages, interest and costs. Subsequently an order was entered denying the defendant’s motion for judgment, which order is before us on appeal in connection with the appeal from the judgment.

Section 1187 of the Code of Civil Procedure provides as follows : Where the jury find a general verdict, the court may instruct it to find also specially upon one or more questions of fact stated in writing. The special verdict or special finding must be in writing, and it must be filed with the clerk and entered in the minutes.”

The submission of the foregoing special questions seems to have been fully authorized and the practice pursued by the learned trial judge perfectly regular.

Section 1188 of the Code proxddes that “ Where a special finding is inconsistent with the general verdict, the former controls the latter, and the court must render judgment accordingly.”

If in the finding of a jury special matter follows or is followed by general matter, the verdict will be judged according to the special matter. Fraschieras v. Henriques, 6 Abb. N. S., 251. The verdict herein was a general one in favor of the plaintiff, and was controlling except so far as the. special findings were inconsistent with it. Code § 1188; U. S. Trust Co. v. Harris, 2 Bos., 75. The special findings herein were inconsistent with the general verdict, and legally required the entry of a judgment in favor of the defendant. Upon the foregoing findings, as rendered by the jury, it became the duty of the court to direct the entry of judgment in favor of the defendant. Code §§ 1188, 1189; U. S. Trust Co. v. Harris, supra; Dempsey v. The Mayor, 10 Daly, 417.

The plaintiffs have no personal right of action for damages sustained by their mother, Hester Paret, in her life-time, and the trial judge erred in holding that the plaintiffs, in the capacity of next-of-kin, were entitled to recover such damages. The devisee does not acquire by the devise the right to recover for injury to the rental value of real estate which happened prior to the passing of title under the devise. The right of action is a personal asset, accruing fco the owner upon the happening of the injury. The executors or administrators of Hester Paret were entitled to receive the damages sustained during her life-time, and to enforce their payment by action, if necessary, as part of the estate to be administered by them. The plaintiffs were without authority to maintain a suit for the recovery of such damages, while the right of action therefor was vested in the executors or administrators. Griswold v. Met. El. Ry. Co., 122 N. Y., 102; Shepard v. Man. Ry. Co., 117 Ib., 441.

The most that the plaintiffs herein would be entitled to recover for damage to the rental value would be such loss as was sustained by reason of the wrongful acts of the defendant between December 20, 1882, the date of Mrs. Paret’s death, to October 4, 1883, the date when they sold the property, a period of less than ten months. But this error is unimportant, because of the following finding of the jury : “We have not allowed any damages as to rental value.”

The second alleged cause of action, constituting, as we have already shown, not an additional cause of action but only a separate item of damage, presents a claim for loss of fee or selling value which cannot be recovered in a common law action for money only. Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 98; Tallman v. Met. El. Ry. Co., 121 Ib., 119; Pappenheim v. Met. El. Ry. Co., 40 State Rep., 445.

In the last cited case, the rights of persons in the situation of these plaintiffs is very thoroughly discussed. The Court of Appeals, Peckham, J., say as follows: “ I have thus far referred- to the case of the vendee for the purpose of inquiring what rights appertained to him as the present owner of that property. But the argument in favor of the vendor, who owned the property when the road was built, and who sold his land in a depreciated market, caused by the wrongful acts of the defendants, is not to my mind very strong. In the first place, he had his right of action to recover for all damages caused by the trespass up to the time of the commencement of his action, and the subsequent conveyance of the land would not in any way affect that right. If he desired to restrain its further continuance or to recover for the permanent damage caused, he could, while owner, commence and maintain his action in equity. In that action, he would obtain full relief. If he chose to sell, instead of using the remedies which the law gives him, that is a matter, legally speaking, of his own choice. The defendants did not compel or limit or restrain such sale. Nothing that they did could be said to amount to any compulsion by them. The law says their action cannot he regarded as a permanent trespass for the very reason that it is unlawful, and the law will not presume that an unlawful act is to be forever continued. His choice to sell, rather than avail himself of the remedy given him by the law, does not furnish him with a cause of action against the defendants to reimburse him for the loss arising because of the presumption he has indulged in that the trespass would be continuous and unpaid for. He has chosen to regard the trespass in a light opposite to that in which the law regards it, and the loss which he has suffered thereby is not one which the law can regard as caused by the defendants.”

It is clear that the alleged loss sustained by the plaintiffs, upon the sale of the property in question, did not fall within the legal measure of damages in this case. As to the only claim of damages upon which the plaintiffs were entitled to recover, the jury found. against them, and the claim Avhich the jury found in their favor the laAv declares not to be Avithin the legal measure of damages. This situation demanded from the trial judge the direction that judgment be. entered upon the verdict in favor of the defendant. This the learned trial judge did not do.

For the reasons above indicated, the order denying defendant’s motion for judgment in its favor should be set aside, and judgment entered for the defendant upon the verdict. The appeal from the judgment is dismissed Avithout costs. We do not overlook the fact that this disposition of the case will cause the records to sIioav two judgments herein, to wit, the one entered upon the trial in favor of the plaintiffs and the judgment here directed. There was no motion before the trial judge by the defendant to set aside the first judgment. We do not think this court should take action in respect to that judgment upon its own motion, but deem it proper to say that this decision is without prejudice to the defendant to move at special term to set aside said judgment. We think this decision should be without costs, since it occurs that had the action been properly tried, and an intelligible verdict rendered, a recovery for past damages, covering a period of about ten months, to wit, from December 20, 1882, to October 4, 1883, would have resulted.

Sedgwick, Ch. J., concurred.

Dugro, J.—(dissenting.)

I agree with my associates that there can be no recovery in this action for damages other than those to rental value between December 20, 1882, and October 4,1883. The judgment should, therefore, be reversed and a new trial ordered, with costs to defendant to abide the event.

The order denying defendant’s motion for judgment upon the verdict was properly made. The special findings were inconsistent. The first and second allowed damages to rental value, and the third contained a statement that no damages to rental value had been allowed.

It is manifest that the jury did not understand the questions upon which they passed; the verdict is conclusive evidence that this was so.

The verdict contains contradictory statements and should not have been accepted by the court. No judgment should have been ordered upon it.  