
    George A. Powers, Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    Damages—Elevated bailwat—Causes.
    Where, in an action against an elevated railway for damages, it appears that the damages to the fee of the property was occasioned by two or more causes, for one of which the company is responsible, but for the other or others of which it is not responsible, the plaintiff must fail if it is just as probable that they were occasioned by the one cause as by the other cause or causes.
    Appeal from a judgment in favor of plaintiff.
    Hoadly, Lauterbach a; Johnson, for app’lt; Fred Ingraham, for resp’t.
   Pratt, J.

This is a land-damage action for loss of fee and rental value to the lot situated on Ela(tbush avenue, at the corner of Flatbush and Fifth avenues and Pacific and Dean streets, in the city of Brooklyn. The motion in this case to strike the same from the equity calendar and send it to the circuit for trial, and also the motion to stay proceedings until the damage could be assessed by commissioners, were properly overruled. See opinion in the case of Hart v. Brooklyn El. R. Co. (decided at the present general term of trial), 69 St. Rep. 432.

There are a large number of findings made by the court, by the request of both parties, and a large number of exceptions, most of which upon examination disclose no error sufficient to reverse the judgment; in fact the case was tried with great fairness and care. The rule is well settled that if the findings of the plaintiff are modified or nullified by findings for the defendant, then the defendants npon this appeal can claim those which are most favorable to them. If seems to me that the evidence is conclusive that there was no fee damage here to the property facing upon Flat-bush avenue or Fifth avenue, except at the point where it turns from Flatbush avenue into Fifth avenue. Indeed, the court has found substantially that the building of the road has benefited the property upon Flatbush avenue, and has failed to show any damage upon Fifth avenue that the property has received by reason of the road. At the point where it turns from Flatbush avenue into Fifth avenue it encroaches upon the sidewalk, and, of course, as the judge remarked at the trial, it could not fail to damage the property to some extent. Indeed, the court has found that the property, taken as a whole, described in the complaint, has received a special benefit for business purposes by reason of the operation of defendants’ road. It is not claimed or found that the property, so far as it borders on Dean street, has been injured by the presence of the defendants’ road. The court has also found that the effect of the proximity of the defendants’ stations to the property described in the complaint is advantageous to the business portion of the premises, and produces a special benefit for business purposes, so that the damages, if any, by the findings of the court and by the evidence, must be confined to the corner where the railroad turns from Flatbush avenue into Fifth avenue. There is no question as to what appears as well settled that in this class of cases the plaintiff is not entitled to recover any greater sum as damages to the use of the premises in suit than the net amount of consequential injury thereto, after setting off the known , value of the said property, from the said railroad against any injury or inconvenience therefrom.

There can be no question, as a matter of fact,—indeed the court has so found,—that the fee value of the land on Flatbush avenue, irrespective of any building thereon, has largely increased since the authorization and construction of the elevated railroad. He has also proved and found that the business of stores in the vicinity of the property described in the complaint has continued to improve in value. It is also claimed that the building of the road has made the plaintiff’s property more accessible by drawing people in the vicinity, and increasing traffic and business, and that the property for business purposes has been greatly benefited.

The court also refused to find that the existence of a large stable adjacent to the line of property described in the complaint, and extending from Dean to Pacific streets, has appreciably impaired the value of said property. The detrimental effect of a stable is conceded in the testimony of Bennett, Brown, Dougherty and Rustin. All agreed in the statement that a stable depreciates the value of property next door to it, of course.

The court also refuse to find that the failure to erect buildings and otherwise improve the property described in the complaint has impaired the said value of said property. This conclusively appears from the plaintiff’s own witnesses.

The court also refused to find that, if it appeared that the damages to the fee of the property described in the complaint were occasioned by one or two or more causes, for one of which the defendant is responsible and for the other or others of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by the former cause, and he must fail if it is just as probable that they were caused by the one cause as by the other cause or causes. This refusal to find was an equivalent to saying that he could not be bound by that rule of law in estimating the damages, which we think was error. Searles v. Railway Co., 101 N. Y. 661. The application of such a proposition of law is apparent, for the reason that a number of cases appeared in the proof by virtue of which diminution of fee value, if any were found, might be accounted for, and opposed to this is the testimony of plaintiff’s experts alone, stating that the fee value is less now than when the road was built, from which the road is argued to have been the cause of the depreciation. The rule of law to be applied was that, if the court was unable to ascertain between these two causes whether it was due to the one or the other,—that is, the unimproved character of the property reflecting upon itself, the existence of the stable, or the panic of 1892, or any other of numerous proven causes, as compared with the construction and operation of this road,—then the court was bound to decline to award damages to the plaintiff, who is bound to make out his case by a preponderance of proof. Cranston v. N. Y. C. & H. R. R. R. Co., 103 N. Y. 614; 4 St. Rep. 300.

It seems to me that, looking at the evidence in connection with the findings I have referred to, proposed by the defendant, that the court has found a difference between the injury to the property and the benefits accruing to the property from the road altogether too large. The decision is inconsistent with the findings and proofs submitted by the defendant. It is true that, so far as the court has really announced upon the trial any propositions o£ law, no criticism can be made; but we are bound to put the most favorable construction upon all the findings in favor of the defendant, and where one is inconsistent with the findings for the plaintiff, the whole finding must give way to the finding for the defendant. The form of the judgment, we think, is insufficient compliance with the Code of 1894, yet it is impossible to tell the”grounds upon which the conclusions were reached, except by the examination of the opinion and of the various findings for the plaintiff and defendant. It is perfectly clear that •only five or six lots upon Flatbush and Fifth avenues could have been injuriously affected by the elevated road, and the proof is that even now the lots would sell for as much or more than before the road was constructed. It may be observed that the lots upon the corner of Fifth avenue and Flatbush avenue are only fit for ■business purposes, and as such they are much more valuable than for dwellings, and in that respect it seems the property has been improved rather than depreciated.

The judgment is reversed, and new trial ordered.

Dykman, J., concurs; Brown, P. J., dissents.  