
    Hymen Morange, Resp’t, v. New York Elevated Railway Company, et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 15, 1893.)
    
    Evidence—Elevated bailway.
    In an action by an abutting owner against an elevated railway for damages, evidence of a rise in the value of property after the construction of the road, hot attributable exclusively to the beneficial effects of the road, is inadmissible.
    Appeal from a judgment in favor of plaintiff.
    
      Davies, Short & Townsend (Julien T. Davies and Ezra A. Tuttle, of counsel), for app’lts; Thomas J. McKee (William B. Page, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought to recover past and fee damages caused by the construction and operation of the elevated railroad in the Bowery, upon which the property of the plaintiff abuts. We see no reason for disturbing the conclusion at which the learned judge below arrived upon the consideration of the evidence adduced before him upon the trial. The fallacy of the argument presented by the learned counsel for the appellant arises from the fact that he seems to assume that the rise in real estate between the time of the commencement of the construction of the defendants’ railroad and the present is attributable exclusively to the benefits conferred upon such ■ property by the construction and operation of such railroad, entirely ignoring the fact that from 1873 to and unto the year 1877 there was a depression in real estate, the result of the panic in 1873, such as this city has seldom seen ; a recovery from which, whether the elevated railroads were built or not, was as certain as that this country would again become properous. It is not considered necessary to discuss the evidence in detail. It seems to justify the conclusion at which the learned court below arrived. Exceptions were taken to the refusal of the court to find certain proposed findings of fact, and the complaint is made that, as the court did find certain other facts proposed by the defendant, it was error to refuse those findings to which our attention has been called. But it will be seen that the findings which have been requested present elements which are not supported by the testimony, and seem to be in contradiction thereof. The learned court found the physical facts, and refused to find assumptions thereon. Our attention is called to a large number of cases in respect to this question of damages in cases of this description, but we do not think that any of them in any degree conflicts with the course pursued by the court in the trial of the action at bar. We are of opinion, therefore, that the judgment should be affirmed, with costs.

All concur.  