
    BROOKLYN EL. R. CO. v. LEWIS et al.
    (Supreme Court, General Term, Second Department.
    May 13, 1895.)
    Eminent Domain—Rental Value.
    In an action against an elevated railroad for damages to abutting premises, caused by the construction and operation of the road, the rental value of the premises is the gross amount for which it may be rented without deductions for vacancies.
    Appeal from special term, Kings county.
    Petition by the Brooklyn Elevated Railroad Company relative to acquiring title to real estate or a right of way over premises owned by Isaac Lewis and others, known as “Parcel No. 17,” on Myrtle avenue, in the city of Brooklyn. From an order setting aside the report of the commissioners, and directing a second appraisal before new commissioners, petitioner appeals.
    Reversed.
    Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
    Hoadly, Lauterbach & Johnson, for appellant.
    David Leventritt, for respondents.
   PER CURIAM.

It is settled by authority that an award by commissioners will not be set aside for inadequacy or because excessive, unless the award is palpably wrong in either respect. This case cannot be said to present such an aspect, though we might have differed from the commissioners in their determination. The building, a flat house, was erected long after the construction of the railroad. It cost the respondents about $18,500. At the time of the hearing before the commissioners it was fully occupied, at a gross rent of over $1,900 a year. Experts on both sides testified that 10 per cent, of the value was a fair rental on such property. The rent received at the time of the hearing would tend to show that there had been no depreciation in value. The learned judge at special term considered it conclusive evidence of damage that the gross rent received for two years previous was about $1,575 a year. But he fell into this error: The 10 per cent, estimate agreed on by all the witnesses was of gross rental values, not allowing for vacancies and loss of rent, which was estimated to be about 10 per cent. With this deduction there would appear no great discrepancy between the rents received and the estimated rental value. That the construction and operation of an elevated railroad must create some discomfort to the occupier of residential property, as assumed by the judge below, may be conceded, but that is not conclusive as to the right to a substantial award. There is evidence in the case to show that property in the vicinity, including that on the street on which the road is constructed, has enhanced in value, and that in part, at least, it is due to the elevated road. If this was sufficient to equal the injury oaused by the road, the property owner was not entitled to more than nominal award. The case, therefore, presented a fair •question of fact, and the award should stand, it not appearing that the commissioners erred in the principle on which they made their •determination. The order appealed from should be reversed, and the report confirmed, with $10 costs and disbursements. The appeal •denying appellant’s application to resettle, order should be dismissed, with $10 costs and disbursements.  