
    PEYSER v. NEW YORK ELEVATED R. R. CO.
    
      N. Y. Common Pleas ; General Term,
    March, 1883.
    Action fob damages by erection of Railroad in Highway,— • Presumption as to Assessment.—Nuisance to' abutting Owner.—New Trial, or Modification of Judgment.
    Abutting owners are entitled to enjoy the benefits of a 'public street in New York city opened under the act of 1813, it being a presumption that they paid therefor when assessed for its opening.
    The rule in Story®. New York Elevated R. R. Co., 11 Abb. W. O. 236,—that an abutting owner is entitled to damages, if light, air and access are interfered with,—applies where the street is held by the city in trust for public use as a highway, as well as where the fee, subject to such easement, is in the abutting owner.
    In ease of an erroneous ruling below, if the appellate court cannot see that the appellant was not influenced by it in the subsequent ■presentation of his case, they will not refuse a new trial, and award what appears to be the proper judgment in reliance upon the findings, which may have been thus effected.
    
    Appeal from a judgment entered upon the report of a referee dismissing plaintiff’s complaint upon the merits of the action with costs.
    This was an action brought by Frederick M. Peyser of the city of New York against the Metropolitan Elevated Railroad Company, to recover damages for injury to his property, No. 106 Amity street, resulting from the erection, existence and use of the elevated railroad structure upon that street.
    One of its columns passes through Mr. Peyser’s vault, and is in front of and about five feet from the steps leading to his house. Amity street was opened, under the act of 1813, and the fee thereof is in the city.
    
      Whitehead & Stuart, for appellant.
    Dorsheimer, Bacon & Deyo, for respondent.
    
      
       Upon this subject see the following cases : Canaday v. Stiger, 55 N. Y. 452; Schreyer v. Mayor, &c, of N. Y., 40 Super. Ct. (J. & S.) 255; Kingsley v. City of Brooklyn, 5 Abb. N. C. 1, 4, note; affirmed in 7 Id. 28; S. C., 78 N. Y. 200; Richardson v. Home Ins. Co., 47 Super. Ct. (J. & S.) 138; Robert v. Corning, 23 Hun, 299; Whitehead v. Kennedy, 69 N. Y. 462; First Nat. Bk. of Cincinnati v. Kelly, 57 N. Y. 34; Fitzhugh v. Wiman, 9 N. Y. 559.
    
   Van Burnt, J.

The counsel for the respondents have claimed that the decision of the case of Story v. New York Elevated R. R. Co. by the court of appeals does not apply to the case at bar, because the deed from the city of the Story lot contained a covenant that Front street should be and remain an open street forever; and no such covenant can be shown by the plaintiff in respect to this lot.

What the plaintiff does show is that the street in front of his lot was opened under the act of 1813, and the presumption is that the abutting owners paid for the said street by being assessed for the benefits which the opening of said street would confer upon their property. They having paid for such benefits, they are entitled to enjoy them, and certainly have an equal, if not greater, title to such enjoyment than if there had been a covenant made that the street should be and remain open forever. It may be true that the courts of this State have gone very far toward deciding that abutting owners have no rights, although they have bought and paid for the same, which the legislature are bound to respect; but the majority of the court in the Story case clearly held that where light, air and access are interfered with, to which an abutting owner is entitled by grant or contract by any corporation acting under authority of the legislature, damages for such interference must be paid. It would seem, therefore, that the Story case is decisive.of the case at bar.

It was urged by the plaintiff and appellant that no new trial should be had in this action because the referee has found all the facts necessary to enable the court to give. the plaintiff an affirmative judgment. What objections the defendants may have had no testimony offered by the plaintiff upon the question of damages, or to the findings of the referee, are not before us.

Whether the defendants may not have relied to some extent upon the then condition of the decision, as to their liability in offering of their evidence, we do not know ; and certainly the general term cannot deprive the defendants of their right to be heard upon exceptions taken to evidence and their right to except to the referee’s findings.

The judgment must therefore be reversed and a new trial ordered, with costs to abide the event.  