
    Thomas Barrett, Resp’t, v. The Manhattan Railway Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. Railroads—Elevated—Damages.
    In an action against an elevated railroad to recover damages for injury to abutting property, the court fixed the amount of the plaintiff’s rental damages at the rate of $1,000 a year and the fee damages at $7,000. Defendants objected on the ground that the award of rental damages was inconsistent, because over fourteen per cent of the fee damages awarded, eight to ten per cent being the annual percentage of the value of property charged as rent. Held, not inconsistent; as it did not appear but that the-, fee damage was too low.
    2. Same—Hearsay evidence.
    Defendant called a former tenant of the property in question, who testified that he had never complained to plaintiff about the dust and cinders-of the road, and had not refused to pay a higher rent on that ground. Plaintiff was re-called and testified as,to conversations held with the tenant in which he complained of the dust and cinders and refused to pay an. increased rent. Held, that the evidence as to the conversations was not' hearsay, but original evidence given for the purpose of impeachment.
    3. Same—Lease prior to purchase by plaintiff.
    The award to plaintiff of damages for injury to the use of premises during the unexpired term of leases, covering the entire property, made at a-fixed rental, before plaintiff acquired the title, was proper.
    ■ 4. Same—Property in possession of tenants.
    An award to plaintiff for injuries to the premises while leased to and in the exclusive possession of tenants holding under written lease is proper.
    5. Same.
    Upon the allegations of the complaint, the action might be regarded either as one at law for a nuisance or as an equitable one to restrain the, continuance of a trespass. Defendant moved that it be sent to the circuit . for trial, which was denied, but no motion was made that plaintiff elect whether he would try the case as an action for a nuisance, or for a trespass. Held, that defendant could not object on appeal that it was denied a trial by jury.
    (Van Brunt, P. J., dissents.)
    Appeal from a judgment in favor of the plaintiff rendered after a trial at the special term.
    . Davies, Short & Townsend, for app’lts; Peckham & Tyler, for resp’t.
   Andrews, J.

The court below fixed the amount of the plaintiff’s rental damages at the rate of $1,000 a year from the time he-bought the premises, making, with costs, a total money judgment $8,337.71. The fee damages were fixed at $7,000, and the judgment enjoined the defendant from maintaining their rail way,unless such fee damages were paid within twenty-five days, or unless the easements were acquired within thirty days by condemnation, proceedings. From this judgment the defendants appealed, and their counsel presents numerous points, upon which it is claimed a. new trial should be granted.

The first point made is that the award of $1,000 per year,, as rental damages, is inconsistent with the remainder of the judgment and decision and unwarranted by the evidence and the facts.

The gist of this objection appears to be that real estate in this city usually produces from eight to ten per cent income, and that the loss of annuál rental income should not therefore have been placed at more than eight or ten per cent on $7,000, which was fixed by the court as the amount of fee damage. . So far as the inconsistency is concerned we fail to perceive the force of the argument, because it might as well be claimed that the fee damage is too low, as that the rental damage is too high. So far as the facts proved are concerned, the testimony presents the contradictions always found in actions of this character, and it is very difficult to determine from such testimony precisely what sums should be allowed, either for rental or fee damage. So far as we can ascertain .from the evidence the findings of the trial court, both as to rental damage and fee damage, are sustained by a fair preponderance of evidence.

The second point raised is, that the findings made by the court as to the injury to these premises are unsupported by the testimony on that subject.

To sustain this proposition the learned counsel for the defend-ants quote in their brief a portion only of the testimony in the •case which bears upon the subject of the injury done to the premises, and fail to quote a large amount of other testimony which is also to be found in the case. While there might be some foundation for the claim that the testimony, on the subject of the injury to the premises was insufficient to support some of the findings, if that portion only of such testimony which is quoted in the brief of defendant’s counsel were considered, we think that taking all the testimony on that point which is found in the printed case, the findings of the trial court as to the injury done to the premises are amply supported by the evidence.

The third point raised is that the trial j udge erred in permitting the plaintiff Barrett to go upon the stand and testify as to alleged •conversations had with a former tenant, and in thereafter basing an important finding of fact on the hearsay evidence so admitted.

We are of opinion that this point is not well taken. One Lib-man, a former tenant of the property in question, had been called as a witness for the defendant, and had testified that he had not complained to Barrett about the dust and cinders of the elevated road, and had not refused to pay a higher rent on that ground, •and that the presence and operation of such railroad did not in any way substantially interfere with the carrying on of his business.

Barrett had been previously called as a witness on his own Behalf, and, after this testimony had been given by Libman, Barrett was recalled and re-examined, and testified that said Libman, in conversation with himself, had at various times compained of the dust and cinders from the road; that they were injurious to his stock, so much so that in the summer time he had to keep his windows closed, and had to keep the goods always covered, and that was the reason he assigned why he would not pay an advanced rent; and that he did so frequently. Counsel for the defendants objected to the question which elicited this testimony ■as incompetent, immaterial and irrelevant and hearsay; and, after the testimony had been given, moved to strike it out upon the same grounds. Counsel for the plaintiff stated that it was offered simply to impeach the testimony of the witness Libman, and the objection of counsel for the defendants was overruled, and the motion to strike out the testimony denied.

We are unable to see that error was committed. The plaintiff’s counsel had the right to recall Barrett to contradict Libman, and the testimony given for that purpose was in no sense hearsay. It is true that the testimony so given, for such purpose, could not be regarded as testimony upon which, disconnected from other testimony in the case, a finding that injury was done by the road could be based ; but we are unable to discover that any finding as to the injury done was based upon such testimony, exclusively. The only effect which could properly be given to such testimony, and so far as we can see, the only effect that was given to it by the trial court, was to discredit the testimony giving by Libman on behalf of the defendants.

The next point raised is that the trial court erred in awarding to the plaintiff damages for injury to the use of premises during the unexpired term of leases, covering the entire property, made at a fixed rental, before plaintiff acquired title thereto.

It was held in Conkling v. Manhattan Railway Co., 36 St. Rep., 124, that loss of rental for a period of six years prior to the commencement of the action could be recovered, although the-premises were occupied during that period under a lease given more than six years prior to the commencement of the action. The principle established by that decision applies to the present, case, in which it appears that the period for which the plaintiff has been allowed for loss of rent was included in a lease given before the plaintiff became the owner of the premises. Moreover, it has been repeatedly decided that the owner of property injured by the defendant’s road, can recover fee damages, although he-purchased the property after the road was built We think the reasoning of those cases applies to a case like the present, where the owner suffers loss of rent by reason of a lease executed before he purchased the property. The doctrine that a continuous-trespasser is liable to the owner for fee damages, although such owner may have purchased the property at a lower price because of the existence of the trespass, applies to a case like the present, where the owner has purchased property encumbered by a lease,, at a low rental, although he may have paid a lower price for the-property than he otherwise would, because of the existence of such lease.

The case of Hine v. N. Y. Elev. Railway Company, 37 St. Rep., 606, cited by defendant’s counsel, does not apply, _a.ll that was-decided in that case was, that “ an action against an elevated railroad to recover damages for trespass committed by it to easements may be maintained by an owner of leased premises where, because of such trespass, he can procure from his lessee only a. reduced rent from that which he would have received had the trespass not existed.”

The fifth point raised is that the case made out by the' plaintiff did not warrant the judgment.

The testimony given by the witnesses for the respective parties-, presents the usual contradictions found in actions of this character, but, as we have already stated, we think the findings as to- the nature and extent of the injury done by the defendants are supported by a fair preponderance of testimony.

The,sixth point raised is that the trial judge erred in refusing a jury trial to the defendants.

Upon the allegations in the complaint the action might be regarded either as brought to restrain the continuance of a nuisance or the continuance of a trespass.' At the commencement of the trial counsel for the defendants moved to strike the case from the special term calendar, and that it be sent to the circuit for trial, on the ground that the defendants were entitled to a jury trial by the constitution and the Code of Civil Procedure. This motion was denied and defendants’ counsel excepted, but no motion was made that the plaintiff should be required to elect whether he would try the case as an action for a nuisance or for a trespass.. We are of the opinion that, under these circumstances, the case-falls within the decision of this court in the case of Lilmann v. The Manhattan Railway Co., 59 Hun, 428; 36 St. Rep., 639, and that the point is not well taken.

The seventh point is that the premises having been leased to and in the exclusive possession of tenants holding under written leases, it was error to award damages for alleged injuries to the use of this plaintiff.

This point has been decided against the plaintiff' in Hine v. N. Y. Elev. Railway Co., supra, and other cases, and it is not necessary to consider it further.

The judgment should be affirmed, with costs.

Barrett, J., concurs; Van Brunt, P. J., dissents.  