
    Benjamin R. Child, Respondent, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants.
    
      Eminent domain—damages recoverable against an elevated railroad company by a lessee—he cannot recover them under a new lease made after the lessor has granted the railroad company an easement of light, air and access — the operation of the . railroad is notice to the lessee although the release is not recorded— a recovery not sustained where the complaint does not allege the facts essential thereto.
    
    In. 1877 Benjamin E. Child, who was the owner of the buildings erected upon certain lots in the city of New York, obtained from the owner of such lots a lease thereof for a period of twenty-one years. The lease contained a covenant to the effect that the lessee, at the expiration of. the lease, could, within twenty days after its termination, remove the buildings, but did not- contain any covenant as to a renewal.
    
      In 1894 Child brought an action to recover the damages done to his buildings and to his leasehold estate by the construction and operation of an elevated railroad in front of the premises, and to enjoin the operation of such railroad. Thereafter he obtained a new lease for a term of five years to commence when his twenty-one-year term expired. Prior to the making of the new lease the elevated railroad company had obtained from Child’s lessor a grant of the easements of light, air and access appurtenant to the premises.
    Such grant contained the following provision: “It is expressly understood and agreed by and between the parties hereto that in all leases hereafter executed to tenants by the party of the first part no rights are to accrue to the lessees thereunder as against the parties of the second part.”
    
      Held, that Child was not entitled to injunctive relief or to recover any damages growing out of the operation of the railroad during the term of the five-year lease, for the reason that it would be presumed that the rent reserved in the five-year lease was fixed with a view to the fact that the elevated railroad was being operated, and for the further reason that the release executed by the lessor to the elevated railroad company was a bar to the plaintiff’s right to any relief on account of the operation of the road after the expiration of the original lease;
    That the elevated railroad having been in operation at the time the five-year lease was executed, the fact that the grant from the plaintiff’s lessor 'to the railrqad company had not been recorded at that time did not deprive the railroad company of the benefit of the grant;
    That the plaintiff having in his complaint stated no facts entitling him to a recovery under the five-year lease, the judgment therefor and for an injunction could not be sustained.
    Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of ■ September, 1902, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Sherrill Babcock, for the appellants.
    
      W. G. Peckham, for the respondent.
   McLaughlin, J.:

This is the usual action to recover damages and for an injunction restraining the operation of defendants’ elevated railroad. The plaintiff had a judgment for some twenty odd thousand dollars damages and for an injunction voidable on the payment of $5,000 and interest thereon from the 5th of February, 1901, for a conveyanee of the easements appurtenant to a leasehold estate which expired on May 1, 1903. There is no ■ substantial dispute between the parties as to the facts except so .far as they relate to' the damages recovered.

In 1865 the plaintiff purchased buildings situate upon lots known as Hos. 279 and 281 Greenwich street in the city of Hew York, and a Trinity Church leasehold estate for an unexpired term of twelve years, with/a privilege of renewal for twenty-one years. In 1877 he obtained a renewal for the term of twenty-one years from the first of May of that year. The lease contained a covenant to the effect that the lessee, at the expiration of the lease, could, within twenty days after its termination, remove the buildings standing thereon, but it did not contain a covenant as to renewal. In 1894 the plaintiff brought this action to recover damages to the buildings standing upon the premises leased and to his leasehold estate, as well as to enjoin the defendants from the operation of their railroad upon the ground that they had and were depriving him of the easements of light,- air and access appurtenant to such property. Subsequent to-the commencement of the action and after issue had been joined therein the plaintiff obtained a new lease for a term of five years, to-commence with the termination of the twenty-one-year lease, viz.,, on the 1st of May, 1898.. Before the making of the new lease the-defendants had obtained from the plaintiff’s lessor, the Trinity corporation, a grant of all its easements of light, air and access in the ■ premises, which grant contained, the following provisions“ It is expressly understood and agreed by and between the parties hereto that in all leases hereafter executed to tenants by the party of the first part no rights are to accrue to the lessees thereunder as against the parties of the second part.”

The trial court found that the plaintiff was entitled to recover:: (1) $18,000 rental damages under the lease which expired on the 1st of May, 1898; (2) $6,000 rental damages which had been sustained under the five-year lease from its date to the date of the trial,, viz,,, from- May 1, 1898, to February' 5, 1901 and (3) an injunction restraining the further operation of defendants’ road in front of the premises leased during the continuance of plaintiff’s lease, or in- the alternative to damages- of $5,000. Judgment was entered to this effect and the defendants have appealed.

As to the award of $18,000 rental damages under the lease which expired on the 1st of Hay, 1898, a careful examination of the evidence, so far as the same relates thereto, satisfies us that this recovery is proper. The defendants’ interference with plaintiff’s easements is clearly shown and the damages which he suffered by reason thereof are amply sustained by the proof. The judgment in so far as it permits such recovery, together with the interest thereon, should be affirmed.

As to the balance of the judgment we think there is no basis for it. First. Upon the expiration of the lease given in 1877 plaintiff’s tenancy absolutely ceased.. He had no legal right to a renewal of the lease or to continue in possession of the premises. The only right which he had was to remove the buildings standing thereon within the time specified in the lease. The church corporation could have refused, had it seen fit, to relet the premises to him, and could have put another tenant in possession. The fact that it chose to make a new lease did not give him, as lessee, any greater rights or privileges than a- new tenant would have possessed if the lessor had, decided to lease to a new tenant. Then, too, the lease itself seems to indicate that it was the intention of the parties not to renew or continue the old lease, but to make a new one. Otherwise there is no meaning to the words “ new term ” in the sentence that the rent therein specified shall continue for and during “ a new iermP At the time this lease was executed, ¡November 26, 1897, the defendants’ railroads were in full operation, of which fact the plaintiff was fully aware. Having this knowledge he could not successfully maintain an action to recover damages sustained under the lease then entered into because he is presumed to have contracted with the owner with reference to the existing situation-The rent is presumed to have been reduced to the extent that the operation of the railroad damaged the premises, and the loss sustained by reason thereof could be recovered, if at all, by the landlord and not by the tenant.. This precise point was passed upon by the Court of Appeals in Kernochan v., N. Y. E. R. R. Co. (128 N. Y. 559). (See, also, Crimmins v. Metropolitan El. R. R. Co., 87 Hun, 187.) In the Kernochan case, Judge Andrews, speaking for the court, said: “ It would be an Unnatural and violent presumption that the lessor intended to exact or that the lessee intended to pay rent measured by the value of the use of the premises without the railroad, on the supposition that it- would be removed during the term. On the contrary, it is undoubtedly true that the rent reserved in leases like this, represents in the minds of the parties the value of the use of the premises incumbered by the railroad. The rent is diminished to the extent of the estimated injury from this cause to the rental value of the premises. * * * The loss falls upon the lessor and the continuance of the wrong during the term imposes no pecuniary loss upon the lessee. To hold that the right of action vests in the lessee, or to divide the claim between the owners of the two estates would be contrary to equity and to the presumed intention of the parties.” '

The cases of Witmark v. N. Y. E. R. R. Co. (149 N. Y. 393) and Storins v. Manhattan R. Co. (77 App. Div. 94) are not in conflict with this view. In each of these cases a renewal lease and not a new one was given in pursuance of a covenant contained in the original lease, and it was held that such renewal lease by reason of such covenant did .not involve the creation of a new, but only the continuance of the existing tenancy, for which reason the renewal lease did not deprive the plaintiff of the right to 'maintain the action.

Second. It also appeared that prior to the execution of the five-year lease the lessor granted to the defendants all of the easements of light, air and access in or appurtenant to the premises in question/ This prevented plaintiff’s recovering damages or any relief subsequent to the expiration of the lease which expired on the 1st of. May, 1898. It is true the evidence does not show that the grant had been recorded, but that fact could not operate to deprive the defendants of their property rights acquired under the grant. They were in open, visible and notorious possession of all the rights acquired by or released to them, and their possession was inconsistent with the title in the plaintiff’s lessor to a full right to the easements of light, air and access afforded by the street, and, therefore, it operated as a notice to the plaintiff of the defendants’ right therein. ( Ward v. Metropolitan El. Ry. Co., 152 N. Y. 39.)

Third. Plaintiff was not entitled to recover, under, his complaint, damages sustained under the five years lease. The only facts stated in the complaint which entitled' him to damages or any relief are those under the lease which expired the 1st of May, 1898. There is not a suggestion in it of recovery under the five years lease. It was not amended either before or at the trial. There are no allegations in it, therefore, to support the judgment in so far as it grants injunctive relief and awards rental damages from May 1, 1898, to February 5,1901. A party can only recover in accordance with the allegations of his complaint as originally made or subsequently amended. (Clark v. Post, 113 N. Y. 17.) The plaintiff’s right to recover under this lease was raised by appropriate objections and exceptions to the admission of evidence.

The judgment appealed from, therefore, must be modified by reducing the judgment for rental damage, interest, costs and allowance as entered, to the sum of $20,308.49, and as so modified the judgment appealed from is affirmed, without costs to either party.

Van Brunt, P. J., O’Brien and Laughlin, JJ., concurred ; Patterson, J., concurred in result.

Judgment modified by reducing judgment for rental damages, interest, costs and allowance as entered to the sum of $20,308.49, and as so modified affirmed, without costs 'to either party.  