
    J. Harris Jones, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    First Department,
    April 7, 1911.
    Hew trial—excessive verdict — reduction of verdict — evidence — nuisance — temporary structures.
    Where in an action for a nuisance alleged to have damaged real property, the court has charged that the limit of the plaintiff’s recovery is a certain sum for injury to the usable value of unimproved real estate and for actual loss of rentals of improved real estate, but the jury, contrary to the instruction, finds a verdict largely in excess of the limit set, so as to show that the jurymen were swayed by passion or prejudice, the court cannot, on holding that the verdict is excessive, condition the granting of a new trial on the plaintiff’s refusal to accept a specified reduction in the verdict if the amount of damages depended upon questions of fact.
    Where an alleged nuisance consists in the maintenance of railroad yards, roundhouses, machine shops, etc., and in the use of bituminous coal causing soot and noxious vapors, the defendant is entitled to show that certain of the structures erected by it were temporary in character as well as the conditions which made the temporary úse necessary.
    Appeal by the defendant, The New York Central and. Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered -in the office of the clerk of the county of New York on the 15th day of August, 1910, upon the verdict of a jury, and also from two orders entered in said clerk’s office on the 9th day of August, 1910, denying the defendant’s motion for a new trial made upon the minutes and granting the plaintiff an extra1 allowance.
    
      Robert A. Kutschbock, for the appellant.
    
      Benjamin Slade, for the respondent.
   Dowling, J.:

Plaintiff brought this action to recover $100,000 as the damages claimed to have been sustained by him by reason of the depreciation of. the rentals, usable and market value, and permanent injury to the fee of certain real estate, improved and unimproved, owned by him in the borough of the Bronx, city of New York, due to the maintenance of a nuisance by defendant at its High Bridge yard, situate on the easterly side of the ■ Harlem river, between One Hundred and Sixty-first and One Hundred and Seventieth- streets in said city, such nuisance resulting from the wrongful and unlawful operation and maintenance by defendant of its said yard, roundhouses, machine shops and appurtenances located near plaintiff’s property, and from the use of bituminous coal in its standing engines, engine houses, machine shops and appurtenances in said'yard, thereby causing smoke, soot and noxious vapors and gases to issue therefrom, to settle upon plaintiff’s property and to enter plaintiff’s dwellings, injuring their contents and disturbing the enjoyment thereof by the tenants, and from the incessant, loud and disagreeable noises accompanying the same, all causing loss to plaintiff.

At the close of a protracted trial, into the-details of which it is unnecessary for the purpose of this appeal to enter, the learned trial justice withdrew from the consideration of the. jury by successive rulings every item of damage upon which plaintiff could possibly recover save two, (1) the usable value of plaintiff’s unimproved real estate, claimed to be $10,540 per year for the period of two years, making $21,080; (2) the actual loss of rentals from plaintiff’s improved real estate for the period of six years, amounting to $9,621, making an aggregate of $30,701. The court charged the jury that such sum was the total of plaintiff’s claim. Despite that charge, the jury found a verdict for plaintiff in the sum of $58,250. Amotion having been made for a new trial upon the minutes and to set aside the verdipt as contrary to the law and evidence and as excessive, decision thereon was reserved. Thereafter the court rendered an opinion wherein it called attention to the fact that there •Were .originally four distinct classes of claims for damage, of which those for diminution of fee value and damage to rental value had been eliminated by consent of counsel, leaving the two classes of damage hereinbefore specified as the only questions to'be determined by the jury (assuming, of course, that the existence.of a nuisance had been established); that counsel for plaintiff had furnished a table of. figures showing the extent of the damage as $30,701 in the aggregate; that the jury had been, charged that if a finding on the general issue was in plaintiff’s favor he could not recover more than that amount; but that the jury had fixed the damages at $58,250. It then proceeded to subtract the excess over $30,701, and, eliminating such amount, a balance for consideration was left of $30,701, from which the court, deducting the $9,621 claimed for loss of rents, found that the jury had awarded $21,080 as the usable value of thirty vacant lots. Applying the rule laid down in Tallman v. Metropolitan El. R. R. Co. (121 N. Y. 119), the court found that there was an efitire absence of any evidence upon which a substantial recovery upon that branch of the case could be had, and, therefore, reduced the damages thereon from $21,080 to $1.80. Allowing the other item of $9,621 to stand, it found that the verdict was excessive and ordered a new trial, unless plaintiff would stipulate' to reduce the verdict to $9,622.80. Plaintiff having so stipulated, the new trial was, refused, and the present appeal is taken.

It is obvious that a verdict in an amount so far in excess of any recovery justified under any view, either of the facts or of the law, is without weight or force for any purpose. Either the jury overlooked the explicit directions of the court as to the maximum recovery to which plaintiff could be entitled, or its members were so swayed by passion or prejudice that they deliberately disregarded them. The amount of the verdict is inexplicable upon any theory, and there is no contention that there was any reasonable method of reaching it. Such a result destroys even any presumption that they actually included the loss of rentals therein. It is a mere expression of whim, caprice or a desire to punish a litigant. The action of the court in endeavoring to reduce it to an amount within the limits of the proof offered, amounted under such conditions to the direction of a verdict, and if that action could be supported at all, it could only be upon, the theory that the plaintiff was entitled to the recovery of that amount as a matter of law. That, of course, could not be done. The matters in controversy submitted to the jury were issues of fact and not of law. The questions of what rentals, if any, the plaintiff had lost during the period in question, and to what extent, if any, such losses were due to the conditions claimed to exist in defendant’s yard, were ones of fact only. They were so submitted by the court and properly. They never became issues of law only, and plaintiff was not entitled to recover the amount of the judgment as a matter of law. It, therefore, cannot be sustained, and a new trial must be had.

In view of this conclusion, attention should be called to the error committed, in excluding' evidence offered to show that certain structures erected by defendant during the years 1905 and 1906 wére temporary in character, and not permanent. The learned trial court charged the jury, without objection, that a. nuisance temporary in character could not be complained of by a private litigant, but the evidence tending to show the temporary character of certain of the constructions, and the conditions which made that temporary use become necessary, was excluded.

The judgment and orders appealed from should be reversed and a new trial ordered, with costs to appellant to abide the • event.

' Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event. /  