
    Huggins v. Manhattan Railway Co.
    (New York Common Pleas—General Term,
    November, 1892.)
    In an action for damages caused by the maintenance and operation of defendant’s road, the court instructed the jury that, “plaintiffs are entitled to all damages caused by illegal interference of the defendant with their easements by the maintenance and operation of the railroad in the street for said period regardless of any benefits which the defendants may claim resulting to them or to said premises generally in common with other premises not abutting on the street through which said road is maintained, but to be offset by peculiar benefits.” And again, that, “ the benefits to the plaintiff’s premises which the defendant is entitled to offset against the damages which the plaintiff sustained, if any, by the defendant’s illegal acts, must be limited to such as are shown by the evidence to be special to the property abutting on the street on which the road is erected, and not such as are general and shared in by all other premises in this neighborhood not abutting on the streets through which the road runs.” Held, erroneous.
    Appeal from judgment and from order denying new trial. Action, by John P. Hughes and others for damages from the maintenance and operation of defendant’s elevated railroad on the street in front of plaintiffs’ premises. Verdict of $9,000 for such damages between the seventh of April, 1881, and the seventh of April, 1887.
    
      Guernsey Sackett, for plaintiffs (respondents).
    
      Brainard Tolles, for defendant (appellant).
   Pryor, J.

The appellant impeaches the judgment for error in the charge and in the admission of evidence; but as we are of the opinion that the first ground of reversal is sufficient, the second may be dismissed from consideration.

The quantum of damage sustained by plaintiffs from the invasion and appropriation of their easements in the street by defendant’s railroad, was the subject of strenuous controversy between the parties, and was submitted to the judgment of the jury upon evidence of an extremely uncertain and indeterminate character. Obviously, therefore, it was of capital importance to a correct solution of the question, that the presiding judge should propound to the jury the true criterion by which to ascertain the amount of that damage.

Nevertheless, the learned judge instructed the jury that “ the plaintiffs are entitled to all damages caused by the illegal interference of the defendant with their easements by the maintenance and operation of the railroad in the street, regardless of any benefits which the defendants may claim resulting to them or to said premises generally in common with other premises not abutting on the street through which said road is maintained, but to be offset by peculiar benefits.” And again that “ the benefits to the plaintiff’s premises which the defendant is entitled to offset against the damages which the plaintiffs sustained if any by the defendant’s illegal acts, must be limited to such as are shown by the evidence to be special to the property abutting on the street on which the road is erected, and not such as are general and shared in by all other premises in this neighborhood not abutting on the street through which the road runs.”

Thus, in the most precise and peremptory terms, the learned trial judge repeatedly admonished the jury not to abate anything of their award to the plaintiffs on account of an enchancement in the value of them premises from the presence of the railroad, if such enchancement of value was likewise imparted to other property not situated on the street.

That the instruction submitted to the jury an erroneous rule of damages is adjudicated by the Court of Appeals in Bohm v. M. E R. Co., 129 N. Y. 576, and in Becker v. M. E. R. Co., 131 id. 509.

Upon the record we are unable to affirm of the instruction that it was of no effect on the verdict or detriment to the defendant. Moore v. E. R. R. Co., 130 N. Y. 523, 529. By twice procuring the court to exclude from consideration by the jury and from credit to the defendant, the value of general benefits to their property, the plaintiffs' emphasized their appreciation of the influence of the instruction upon the magnitude of the verdict. And, as the case contains evidence to justify an inference that the presence of the railroad operated a general enhancement of value in property in the vicinity but not upon the street, the conclusion is, that the jury, obeying the instruction of the court, declined to reduce the amount of damages by an allowance for such common enhancement of value in plaintiffs’ premises. Newman v. R. R. Co., 118 N. Y. 623; Purdy v. R. R. Co., 36 N. Y. St. Repr. 45; Welch v. R. R. Co., 29 id. 511.

Judgment reversed and a new trial ordered, costs to abide the event.

Daly, Ch. J., and Bischoff, J., concur.

Judgment reversed and new trial ordered, costs to abide the event.  