
    Henry Moss and David Moss, Resp’ts, v. The Manhattan R. Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. Railroads—Elevated—Evidence.
    In an action against an elevated railroad to restrain its operation and for damages, it is not reversible error to receive evidence as to the noise made by its. operation ; especially where it does not appear that the award was based to any extent thereon.
    '3. Same.
    The court excluded a general question as to the effect of the railroad station on the rental value of property in the vicinity used for the liquor business, but immediately afterward allowed the witness to testify that the proximity of the station to plaintiff’s liquor business, half a block distant, improved it. Meld, no error; that defendants were entitled to no more than this.
    Appeal from a judgment rendered at special term in favor of the plaintiffs in an action to restrain the operation of the elevated railroad of the defendants in front of the plaintiff’s property, and to recover damages for the injury done by the railroad to said property.
    
      Henry D. Sedgwick, Jr., for app’lts; Henry G. Atwater, for resp’ts.
   Bartlett, J.

The judgment in this case awarded the plaintiffs $3,813.48 damages and costs, and directed that an injunction should issue restraining the defendants from further maintaining or operating their railroad in front of the plaintiff’s premises, unless within ninety days they caused the plaintiffs’ easement in Third avenue appurtenant to said premises to be condemned for railroad purposes according to law, or unless they tendered the plaintiffs $5,000 for a conveyance and release of all such easements.

The appellants make three points :

First. That the damages are excessive. ■

Second. That it was error +o receive evidence as to the noise made by the operation of the .elevated railroad; and

Third. That the trial judge was inconsistent in admitting testimony that the presence oí the railway was injurious to a cigar manuiacturer in his business, while he excluded testimony intended to show that it had proved beneficial to a neighboring liquor dealer.

As to the first point, we are not satisfied that the amount at which the damages were assessed is excessive. The increase in the rentals of the plaintiff’s property since the construction of the elevated railroad may well have been due to the general rise in real estate values in that part of the city; and, indeed, there was express proof on the trial that while Third avenue property had advanced, property not affected by the road had advanced much more in comparison.

As to the second point, that the annoyance caused by noise is not to be considered as an element of damage in this class of cases, we have already expressed a contrary opinion in Ode v. Manhattan Railway Co., 56 Hun, 199; 31 N. Y. State Rep., 106. Furthermore, in the case at bar it does not appear that the award was based to any extent whatever upon the testimony in respect to noise; for there is no mention of noise in the findings

As to the third point, that the learned judge at special term was inconsistent in his rulings, to the injury of the defendants, the record shows no error. It is true that the .court sustained the objection of plaintiff’s counsel to a general question as to what effect an elevated railroad station had upon the rental value of property in the vicinity, to be used for the liquor business. But immediately afterward the same witness was allowed to testify as to the effect of the station opposite the plaintiffs’ premises upon his liquor business, half a block distant, and he declared that the proximity of the station improved it. The defendants were entitled to no-more than this.

The judgment should be affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur.  