
    Charles Nette, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.
    
      (New York Common Pleas. General Term,
    
    
      Filed November 7, 1892.)
    
    Railed ad - -Elevated—Findings—Benefits.
    Where there is no finding that the railroad was of no benefit to plaint'iff’s property, and the evidence is ample to warrant a finding of the fact of su"h benefit, a refusal to find on request that “ in estimating the damages, if any, the benefits accruing to said premises, and peculiar thereto, from the maintenance and operation of said railroad should be set off against any inconvenience resulting from said railroad to said premises," is error.
    Appeal from judgment in equity, awarding an injunction and damages against defendants.
    
      Robert Sewell and J. Aspinwall Hodge, Jr., for resp’t; William R. Page, for app’lts.
   Pryor, J.

In order to determine the measure of damages to which plaintiff might be entitled, if to any, defendants requested the learned referee to find, as a conclusion of law, that in estimating the damages, if any herein, the benefits accruing to said premises and peculiar thereto, from the maintenance and operation of said railroad, should be set off against any inconvenience resulting from said railway to said premises.” The finding was refused, and the defendants duly excepted. Here was error. Messenger v. R. R. Co., 129 N. Y., 502, 506; 42 St. Rep., 96.

That the request propounded the correct rule of law applicable to the case, is no longer open to question in the courts of this state, Bohm v. R. R. Co., 129 N. Y., 576; 42 St. Rep., 247; Newmans. R. R. Co., 118 N. Y., 618; 30 St. Rep., 36; and the defendants were entitled, therefore, to its observance in the award of damages against them. The inevitable inference from the refusal of the referee to recognize the rule in the trial of the case is, that it was of no effect upon bis decision, and that in the computation ■of damages he made no allowance for benefits to the property from the presence and operation of defendants’ railroad. Had he found that the railroad is of no benefit to plaintiff’s property, or were there no evidence in the case authorizing a finding of such benefit, the refusal might be sustained, because involving denial a mere abstract proposition, and so of no detriment to defendants.

' But, since the referee omits to find the absence of such benefit, and since the evidence is ample to warrant a finding of the fact of such benefit, Purdy v. R. R Co., 13 N. Y. Supp., 295, 299; 36 St. Rep. 43, it is impossible for us to say that the referee, in the award of damages against defendants, did not decline to credit them with the effect of benefits actually communicated to plaintiff’s property by the presence and operation of their railroad.

The amount of damages allowed to plaintiff is, upon a negation of the rule propounded in the request, perfectly consistent with the hypothesis that, on a balance of loss and benefit to the property from the railroad, benefit preponderates over loss.

For apparent error in the record of probable prejudice to appellants, the judgment must be reversed.

It may not be without advantage to the parties on another trial of the action, if we express the doubt we entertain, whether the complaint should not have been dismissed for defect of proof of ■substantial injury to plaintiff’s property. Hoffman v. R. R. Co., ante, 711.

Judgment reversed, and a new trial ordered, costs to abide event

Daly, Ch. J., and Bischoff, J., concur.  