
    Charles Nette, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed December 5, 1892.)
    
    1. Railboad—Elevated—Benefits.
    The proximity of an elevated railroad and its station to the premises in question, and the extensive communication thereby afforded and facilitated, in itself is evidence of benefits. ■
    
      2. Same—Exceptions.
    An exception to a refusal to consider benefits is of equivalent effect to an exception to the rejection of evidence of benefits.
    3. Same.
    Such a refusal is a substantial error, as it cannot-be said that if the referee had considered benefits he would not have found the fact of no substantial injury, in which event plaintiff would not be entitled to injunctive relief.
    Motion for reargument.
    
      J. Aspinwall Hodge, Jr., for motion; W. R. Page, in opposition.
    
      
       See 48 St. Rep., ,723.
    
   Pryor, J

The decision on appeal was based upon the refusal of the referee to find that, “in estimating the damages herein, if any, the benefits accruing to said premises, and peculiar thereto, from the maintenance and operation of said railway, should be set off against any inconveniences resulting from said railway to said premises.” Counsel for the motion objects that the case shows no evidence of benefits. We think otherwise. The proximity of the railroad and its station to the premises, and the extensive communication with the premises thereby afforded and facilitated,' in itself is evidence of benefits. Drucher v. Manhattan R. Co., 106 N. Y., 164; 8 St. Rep., 599. In Flynn v. Taylor, 127 N. Y., 600; 40 St. Rep., 187, the court said that the diversion of travel is presumed to cause special damages, “ because diversion of trade inevitably follows diversion of travel.” The converse of the proposition must be true; namely, that increase of trade inevitably follows increase of travel. At all events, the fact was for the judgment of the referee; but his refusal to consider special benefits necessarily involves the elimination of the fact in his estimate of damages.

Other facts in the case might indicate to the referee the probability of benefits.

Counsel for the motion urges that “ the defendants did not ask the court to find that there were any benefits.” But their claim, by the request to find, that the referee should allow for benefits in the estimate of damages, implies that, upon the evidence, benefits were apparent.

Counsel concedes that if there were an exception to the rejection of evidence of benefits, it might be fatal to the motion; but obviously of equivalent effect is the exception to the refusal of the referee to consider benefits.

The court did not overlook the refusal to find defendants’ thirtieth request; that refusal, however, is of no materiality to the present purpose; since, assuming the converse of the proposition, the referee might have found “a diminution of the fee value in consequence of the railroad,” because of the rejection of benefits in his estimate.

Again, counsel argues that, even though benefits be allowable, they go only in reduction of damages, and do not affect plaintiff’s right to injunctive relief. Seeing that the plaintiff would be entitled to such relief only in the event of substantial injury, Gray v. R. R. Co., 128 N. Y., 500; 40 St. Rep., 478, how can we say that, if the referee had considered benefits, he would not have found the fact of no substantial injury ?

Counsel adduces considerations affecting the merits of the action ; but they are of no relevancy to the present application.

Counsel for the motion fails to present a case within rule 16 of this court, and within the general principle regulating the allowance of re-arguments. Fosdick v. Hempstead, 126 N. Y., 651; 37 St. Rep., 130; Mount v. Mitchell, 32 N. Y., 702; Curley v. Tomlinson, 5 Daly, 283; Banks v. Carter, 7 id., 417 ; Welsh v. R. R. Co., 40 St. Rep., 990.

We adhere to the opinion that, in the interests of justice, a new trial of the action should be had.

Motion denied, with costs.

Daly, Ch. J., and Bischoef, J., concur.  