
    James H. Jones, App’lt, v. The Metropolitan Elevated Railway Company et al., Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed May 4, 1891.)
    
    1. Verdict—Contrary to evidence—Setting aside.
    In an action for damages to the rental value of plaintiff’s premises-caused by the defendants’ elevated railroad, the uncontradicted evidence on behalf of plaintiff was that the structure was distant from the premises about twenty feet; that there was a switch directly opposite; that trains passed every few minutes, and sent out smoke and steam that enveloped the premises; that the light of the store was greatly diminished; the rental value reduced, and that the road had been in operation four years. Held, that a motion for a new trial, made after a verdict of six cents for plaintiff, should have been granted, as it was contrary to the evidence.
    2. Costs op course—Actions concerning real property.
    The complaint alleged that plaintiff had certain rights in a street, and that they constituted an easement in- the bed of the street which attached to his abutting property, and that the defendants had taken no steps to condemn the easement, but had invaded the same; the answer denied any information sufficient to form a belief as to these allegations. Held, that upon the pleadings, the title to real estate came in question, and plaintiff was entitled to costs of course on a judgment in his favor, under § 3228 of the Code of Civil Procedure.
    Appeal by plaintiff from a judgment in favor of defendants, entered on a verdict for plaintiff for six cents damages ; from an order denying plaintiff’s motion for a new trial, on the ground that the verdict was for insufficient damages, and from an order refusing to allow the costs of the action to the plaintiff.
    
      G. L. Rives, for app’lt; Edward C. James, for resp’t.
   Per Curiam.

—So far as a judgment may be affected for error upon the trial there is no reason for reversal.

The damages given by the jury were, according to the testimony, insufficient, and the plaintiff was entitled to a new trial upon his motion. Section 999, Code Civ. Pro.

The action was for damages to the rental value of plaintiff’s house, caused by the building and operation of defendants’ railway along that house.

The evidence in behalf of plaintiff was not contradicted. The defendants called no witnesses.

The structure was about forty feet wide, with three tracks and a track walk on each side. It was floored over with strips of wood with small spaces between them. The structure was distant from plaintiff’s premises at one point twenty feet, and at the nearest 18.53 feet. The trains passed every few minutes, and such as ran to Rector street were switched in front of the premises. The locomotives sent out steam and smoke. It was proved that on damp days the steam sent out would occupy the entire width of the street and hug the buildings on either side of it.

It was proved by a competent witness what was the percentage of light cut off from the building by the structure and passing of the trains. The amount cut off was important. The light of the store was diminished by the structure and the trains, and the light of the floor above was diminished by the trains and the smoke and steam sent off by locomotives in front of the house.

A witness gave evidence as to the loss of rentals. Although he was an agent of the plaintiff, his testimony was uncontradicted, and there was no reason to believe that he did not testify truly. His testimony included the statement of many and different sums and quantities. It was difficult to keep the testimony in mind and to make a rational deduction from it. In reality, such a case is not one fit for submission to a jury, although the rules of law require that it should be tried by a jury.

It is to be further observed that no peculiar benefit was done by defendants’ road to the premises.

The jury in finding that the plaintiff had suffered in four years but six cents damages from the annoyances that have been partly described, must have neglected their duty to give effect to the testimony, however difficult and laborious the performance of the duty might be. The hardness of the task probably led to its not being thoroughly done, and the jury then must have thought that the plaintiff had not proved his case with certainty.

The motion for a new trial should have been granted, and as the charge was correct and the defendants not at fault. Robbins v H. R. R. Co., 7 Bos., the costs of the trial and the costs of this appeal are ordered to be cut in the action and to abide the event. The order denying this motion is reversed and a new trial ordered, with costs as above stated.

Upon the entering of judgment, the clerk refused to tax costs for plaintiff and taxed defendants costs and inserted them in the judgment. The correctness of the clerk’s action depends, under § 3228, Code Civ. Pro., upon whether “ a claim of title in real property arises upon the pleadings.” If it does, the plaintiff should have the costs. If it does not, the taxation was correct.

The sixth subdivision of the complaint is that the plaintiff has certain rights in Trinity place, and that those rights constitute an easement in the bed of the street, which attaches to his said abutting property. The subdivision contains the averment that the defendants have taken no proceeding to condemn the easement.

The answer denies any knowledge or information sufficient to form a belief as to the allegations of the sixth paragraph of the complaint.

This, of course, puts in issue the plaintiff’s title to the easement, which is real estate.

This is a material issue. The right of defendants to use the streets as they do use, is valid, excepting that they have not given compensation to the owners of the easements that they have taken. They, therefore, are not liable to one not entitled to compensation, that is, to one who is not owner. This is true, while it is also true, that the wrong:doing makes the defendants liable for damages as trespassers. That is, they are so to one who is owner of the easement.

The motion for retaxation should be granted, and the order denying that motion be reversed, with ten dollars costs.

Sedgwick, Oh. J., and Me Ad am, J., concur  