
    Charles Buek, Resp’t, v. Metropolitan Elevated Railway Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 17, 1893.)
    
    Appeal—Charge.
    In an action against an elevated railway company for damages, a refusal to charge, where there is evidence of special benefits, that plaintiff is not entitled" to recover except to the extent, if any, by which the disadvantages of the road have exceeded its advantages to said premises, is error.
    Appeal from a judgment in favor of plaintiff.
    
      Davies & Sapallo (Julien T. Davies and Brainard Tolies, of counsel), for app’lts; William G. Peclcham, for resp’t.
   Parker, J.

In Bohm v. Railway Co., 129 N. Y., 576; 42 St. Rep., 247, the court, having under consideration a judgment awarding damages to an abutting owner because of the defendants’ interference with his beneficial enjoyment of certain easements belonging thereto, held that the damages and the compensation to be paid in such case are measured by the balance of injury over benefits ; and in ascertaining them the advantages and the disadvantages are to be considered, and the benefits, whether general or special, form the construction and operation of the railroad, which tend to counterbalance the disadvantages, are to be taken into account in reaching the final result. And it has been held in subsequent cases that a refusal by a referee or trial court to find, upon being requested to do so, that the law is on that subject as stated in Bohm’s case, constitutes ground for reversal of the judgment if properly excepted to; the reason assigned being that, as the request to find states correct principles of law, a refusal to find it requires the inference that these principles are not fully applied, and thereby necessarily the defendant is deprived of the full benefit of them. Sperb v. Railway Co., 137 N. Y., 596; 50 St. Rep., 664; Livingston v. Railroad, Co., 138 N. Y., 76; 51 St. Rep., 660 ; Odell v. Railroad Co., 130 N. Y., 690; 42 St. Rep., 591; Gray v. Railway Co., 12 N. Y. Supp., 542 ; 35 St. Rep., 32.

The defendant requested the trial court to rule as a matter of law that “ plaintiff is not entitled to recover damages in this action, except to the extent, if any, by which the disadvantages of the defendants’ railroad have exceeded the advantages thereof to said premises.” The court refused, and to the ruling an exception was duly taken. The cases to which we have referred determine-that this ruling was erroneous, and command a reversal of the judgment, unless it appears elsewhere in the record that the rule embraced in the proposition was recognized and given force and effect by the trial court In Bischoff v. Railroad Co., 138 N. Y., 257; 52 St. Rep., 374, the court refused to reverse a judgment where the trial court had declined to rule substantially as requested here, but on the ground that there was no evidence of general, as distinguished from special, benefits, resulting to the property by the construction and operation of the railroad. If that were the case here, or if the findings disclosed that the trial court actually applied that which the courts have determined to be the true rule in measuring the damages which should be awarded, Bischoff’s case would point the way to an affirmance of the judgment, for under such circumstances the exception would point out a technical but unsubstantial, error. But it cannot be said here that there was no evidence before the court tending to show what is called general benefits resulting to this and other property in the same vicinity by the building and operation of defendant’s elevated railroad. Evidence tending in that direction can be found scattered all through the record; therefore the ruling cannot be disregarded on the ground that there was no evidence making it necessary for the trial court to apply the rule involved by the request. Ñor does it appear from the other findings made by the trial court that this rule was in fact applied. Until the decision in Bohm's case the courts had not gone so far in the direction of offsetting advantages against disadvantages ; the furthest step in that direction, prior thereto, having been taken in Newman v. Railway Co., 118 N. Y., 618; 30 St. Rep., 36, in which cdse it was held that in measuring the damages there, must be taken into consideration the benefits, if any, peculiar to the owner’s property which have arisen by the •construction of the road. The case under review was tried after the decision in Newman's ease, but before that of Bohm's, and the court, following the practice as it was then understood and applied by the courts, ruled as a matter of law that “ in estimating the damages, if any, to which, the plaintiff is entitled in this action, and in estimating the amount of compensation to which plaintiff is entitled for the taking of his easements, the benefits caused by defendants’ railroad to plaintiff’s said property, and not shared by the community in general, should be taken into consideration and refused to rule in the manner requested by the defendants, as hereinbefore quoted. It is apparent, therefore, that the inference is not permissible here, as in Bischoff’s case, that the court did not exclude from consideration the evidence presented by the defendants touching general, as' distinguished from special, benefits to plaintiff’s property, resulting from the construction of defendants’ elevated railroad. If the views expressed are correct, it follows that the judgment should be reversed, with costs to appellant to abide the event.

Follett, J., concurs.

Van Brunt, P. J. (dissenting).

I think the judgment should be affirmed. It seems to me to be impossible to determine from the decisions of the court of appeals what the rule is in respect to refusals to find, and the court did not err in its refusal to find a rule of law.  