
    MARKET v. MANHATTAN RY. CO. et al.
    (Supreme Court, General Term, First Department.
    May 17, 1895.)
    Elevated. Railroads—Injuries to Abutters—Special Benefits.
    In an action against an elevated railroad for injuries to property abutting on a street in which the road was constructed, it is error to refuse, as immaterial, requests to find that the business portions of plaintiff’s premises were benefited in a greater sum than the residence portions were injured; that the fee value of the premises, exclusive of the building, has steadily increased since the construction of defendant’s road; and that since the building of the road the premises in suit and property in the neighborhood have come into greater demand for business uses, and that such demand has increased the value of such property.
    Appeal from. special term, New York county.
    Action by Henry N. Market against the Manhattan Railway Company and another for an injunction and damages. Judgment was rendered in favor of plaintiff, and defendants appeal.
    Reversed.
    Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.
    R. L. Maynard, for appellants.
    E. M. Felt, for respondent.
   VAN BRUNT, P. J.

This is one of the class of actions with which the court has become somewhat familiar, brought to recover for the taking of certain easements by the elevated rail- . roads. It is not necessary to discuss the particular facts of this case; but it would appear that the learned court erred in refusing to pass upon certain findings which were requested by the defendants. The premises in question were partially occupied for business purposes; and the court was asked to find that the special benefits accruing to the business portions of said premises from the said railroad stations are greater than and more than offset the disadvantages accruing from the presence and operation of defendant’s railroad in front of the said premises. This request was refused as immaterial. The court was also asked to find that the fee value of the premises in suit, exclusive of the building, has steadily increased since .the construction of the defendants’ road, and the same is now more valuable than at any time prior to the construction of said road. This also was refused as immaterial. The court was further requested to find as follows:

“Since the building and use of defendants’ railroad and stations aforesaid in Third avenue, the premises in suit and property in the neighborhood of the same have come into greater demand for business uses, and such demand has greatly increased the fee value of Third avenue property in the locality, including the land described in the complaint. The presence of the said station constitutes a material element of advantage and benefit to the premises in suit, and increases the availability thereof and the variety of uses to which the same may be profitably put.”

These requests were also refused as immaterial.

This, we think, was error. The court made elaborate findings upon the questions which were presented; and, in refusing to pass upon the findings requested upon the ground of immateriality, it seems to have excluded from consideration facts which were calculated to and should have influenced its judgment; and, when they were declared to be immaterial, it is impossible to say that due consideration was given to circumstances surrounding these premises which the court was bound to consider in coming to a conclusion. We think, therefore, that the judgment appealed from must be reversed, and a new trial ordered, with costs to the appellants to abide the event. All concur.  