
    CLINICAL INSTRUCTION CO., Limited, v. NEW YORK EL. R. CO. et al.
    (Supreme Court, General Term, First Department.
    November 16, 1894.)
    Elevated Railroads—Fee Damages.
    There is no inconsistency in awarding fee damages, and refusing past damages, for the construction of an elevated railroad in street in front of plaintiff’s property, where it appears that the property was not used by plaintiff for the purpose of obtaining proper rentals, but was leased at merely a nominal rent for a school which was controlled and managed by plaintiff’s directors.
    Appeal from special term, New York county.
    Action by the Clinical Instruction Company, Limited, against the New York Elevated Railroad Company and another. A judgment was rendered in favor of plaintiff, and defendants appeal. Affirmed.
    Argued before YAH BRUHT, P. J., and O’BRIEH and FOLLETT, JJ.
    George T. Aldrich, for appellants.
    John R. Abney, for respondent.
   O’BRIEH, J.

The judgment restrains defendants from maintaining and operating their railroad in front of plaintiff’s premises unless they pay the sum of $10,000 for a conveyance and release of plaintiff’s rights and easements acquired by said railroad. Ho past or rental damages were awarded, and, with this circumstance-as a basis, the defendants confidently refer to the Hadden Case, 75 Hun, 63, 26 N. Y. Supp. 995, which followed the Sutro Case in the-court of appeals (33 N. E. 334), as authority for a reversal of the judgment. Those cases hold that “to justify an award of fee damages, when an award of past damages is denied, a very clear case should be presented.” These premises are situated on East Thirty-Fourth street, and have a frontage of 51 and a depth of 98 feet. A four-story and basement, iron-front, brick building covers the entire plot. After having been used for office purposes, and for public meetings of various kinds, it came into the possession, in 1882 or 1883, of the Hew York Polyclinic School, who occupied the building for medical and hospital purposes, and continued in such occupation up to the time of the purchase of the property by the plaintiff corporation in 1885. There was expended, after such purchase, about $25,000 in changing the interior, and rendering it suitable for the business of the corporation; and since that-time the Polyclinic School has occupied the premises, at a nominal rental, as lessee of the plaintiff corporation. The building has been used for the purposes of a hospital, the rooms therein being divided up for dispensary, reception rooms, and other apartments suitable to a hospital. The premises are 180 feet easterly from Third avenue. At that point the railroad structure extends from 5-J to 8 feet over the sidewalk, which latter is 30 feet wide. The railroad track is almost entirely over the sidewalk, lacking only 8 inches and a fraction of being entirely so. The outside walk of the structure takes up 4 feet additional over the sidewalk. The engine starts in front of the building, and stands there wken it is not in motion. With a column in front, and the structure above, affecting to some extent access, there is evidence to show that the easements of light and air, so far as the first and second stories are concerned, are materially impaired. There was sufficient evidence given of permanent damage to the fee, to prevent which injunctive relief was granted, but with an alternative permitting the acquirement of a conveyance of the rights and easements of the plaintiff injured and taken by the railroad upon the payment of $10,000. The character-of the occupation, the fact that the building was not used for ordinary business purposes, or rented out with an idea of securing any proper rental return, it being rented as a school which was controlled and managed by the directors of the plaintiff corporation,— made it difficult and impracticable to determine what, if any, past-damage had been suffered. The reason appearing, therefore, for a failure to award such past damages takes the case out of the rule applied in the Hadden and Sutro Cases, in which there appeared an inconsistency in refusing past damages and awarding damages to the fee. The amount here awarded might seem at first blush, to be too large; but the evidence shows that the proximity of this properly to the station, and its relative situation to that portion of the structure that is used by the defendants for the purpose of" starting and stopping their trains, and allowing their trains to-stand while awaiting passengers, affected this property more injuriously than premises where these conditions were not present. We think the judgment was right, and should be affirmed, with costs. All concur.  