
    George W. Sauer, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.
    
      Jüminent domain ■— erection of a viaduct by a city in one of its streets — liability of the city to an abutting owner — amendment of the complaint — evidence as to business profits.
    
    A municipal corporation which builds a viaduct throug'h one of its public streets and thus impairs the easements of light, air and access appurtenant to the property abutting on the street, is liable to the abutting owners for the damages incident to the impairment of such easements.
    Where the complaint in such an action brought against the' city by an abutting owner alleges four causes of action, the first for damages to the fee and rental value of the premises; the second for damages to the plaintiff’s business conducted thereon; the third and fourth for damages resulting from the negligence of the city, the court has power, where no counterclaims have been interposed by the city, to permit the plaintiff to amend his complaint by striking out the claims for fee damages and for negligence, and by amplifying the claim, for rental damages.
    In such an action evidence that the profits of the business conducted by the plaintiff upon the premises in question averaged §15,000 per year for the four years immediately preceding the construction of the viaduct, and that since such construction he had conducted business at a loss' is incompetent upon the question of damages.
    Appeal by tbe defendant, The Mayor, Aldermen and Commonalty of the City of Hew York, from a judgment of the Supreme Court in favor of the plaintiff,- entered in the office of the clerk of .the county of Hew York on the 27th day of ’October, 1898, upon the verdict of a jury for $30,000, and also from an order entered in said clerk’s office on the 19th day of October, 1898, denying the •defendant’s motion for a new trial made upon the minutes.
    
      Theodore Connoly, for the appellant.
    
      Edward C. James., for .the respondent.
   McLaughlin, J. :

The city of Hew York, in 1890, commenced to construct, and in 1893 completed, a viaduct extending from St. Hicholas avenue through One Hundred and Fifty-fifth street to a bridge over the Harlem river. The plaintiff owned certain property situated on One Hundred and Fifty-fifth street in front of which the viaduct passes, and this action was bought to recover the sum of $90,000-damages alleged to have been sustained by him, upon the ground that the construction and operation of the viaduct diminished the-easements of light, air and access appurtenant to and connected with his property.

The complaint contained four separate causes of action, (1) damages to the fee and to the rental value of the premises; (2) damages-to plaintiff’s business conducted'thereon; (3^) damages caused by the negligence of the city in excavating for the viaduct, and (4) damages-for negligence of the city resulting in the bursting of a water meter. At the trial the complaint was amended by striking out the claim for damages to the fee and for negligence, and after such amendment the trial court held that only one 'cause of action was alleged, namely, for damages to the value of the use and occupation of'the premises from the commencement of the construction of the viaduct to the commencement of the action. Both parties were apparently satisfied with the construction thus put upon the complaint, because neithér of them excepted to the ruling, and the trial proceeded and the issues were finally submitted to the jury upon that theory, the learned trial justice stating to the jury, at the request of the defendant’s counsel, “ This action is -limited to rental damage which accrued, if at all, prior to November. 10th, 1896,” and that by rental damages-he meant the loss of “ usable value.” The jury rendered a verdict-in favor of the plaintiff for $30,000, and from the judgment entered thereon and from the order denying a motion for a new trial the-defendant has appealed. It asks for a reversal of the judgment, principally upon the. grounds : (1). That an action of this character cannot- be maintained against the city ; (2) that the court erred in permitting the complaint to be amended at the trial, and in n,ot dismissing it as to the second -cause of action alleged, and (3) that the court erred in receiving, against the defendant’s objection, testimony tending to establish the profits of the plaintiff’s business conducted upon the premises for a term of-years immediately preceding the construction of the viaduct, and that for a number of years following its construction 1-ie had sustained a loss.

As to the first ground of error alleged, we think it cannot be sefiouslv questioned but that the city is liable to an abutting owner for whatever damage it may cause to him-by the erection of a permanent structure -in a public street, immediately in front of and adjoining his property, which deprives him of. the easements of light, air and access appurtenant to and connected therewith. Easements of this character are property (Kane v. New York El. R. R. Co., 125 N. Y. 164), and property cannot be taken from the owner “ for pmblic use without just compensation.” (Const. art. 1, § 6.) The right to maintain an action to recover damages for the invasion of the owner’s rights by the city in this way is in all respects analogous to the elevated railroad cases, and we think the principle there applied must be applied here against the city. The construction of the viaduct was something more than a mere changó of the grade of the street. (Manhattan Ry. Co. v. Mayor, 89 Hun, 429.) It was the appropriation of the street itself in such a way that the plaintiff was deprived of his property for which the city must pay a just compensation.

Neither do we think it- can be seriously questioned but that the trial court had the power to permit the complaint to be amended by striking out the cause of action for damages to the fee and also for negligence; and to permit the cause of action for damages to the use and occupation to be more fully and amply stated. (Code Civ. Proc. § 723.) No counterclaims had been interposed by the defendant, and the plaintiff, therefore, had the right, with the consent of .the court, at any time before the case was finally submitted to the jury, to withdraw from their consideration any or all of the causes of action alleged. The amendment did not introduce a new cause of action. All that it did was to omit the claim for fee damages and for negligence, and to amplify or state more fully the claim for damages to the rental valué. The court so held at the time the amendment was made, and also held that the only recovery which could be had was for damages to the use and occupation, and that but a single cause of action was alleged in the complaint as amended. The defendant acquiesced in these rulings and took no exception to them. It is clear, therefore, that the court correctly denied the motion made by defendant at the close of the trial to compel plaintiff to elect upon which cause of action he would ask a verdict, and also correctly denied the motion to strike out all evidence offered as to the second cause of action. Under the previous rulings there was but one cause of action alleged in the complaint. The trial had proceeded upon that theory and the evidence which had been admitted was directed to that one issue.

This brings ns to the consideration of the remaining question, which is a much more serious ohé, and that is whether testimony was properly admitted as to the profits which the plaintiff had made in his business prior to the construction of the’viaduct and the losses which he had sustained thereafter. The- plaintiff himself was sworn and asked th'e following questions: Q. Will you tell me what your annual profits were from these premises in the use of occupation and business as yon carried it on during the years before the viaduct — state what it averaged annually? ” and “Q. After the viaduct came there what did your annual profits from the use and occupation of the business there average, if anything ? ” Both questions were objected to by the defendant upon the ground that they were irrelevant, incompetent and immaterial, and called for an improper measure of damages, which objections were overruled and an exception taken in each instance. The witness answered that during the four years immediately preceding the construction of the viaduct his profits averaged about'$15,000 per year, and that since its com, struction he had lost money each year in his business. One of plaintiff’s witnesses was also permitted, against the • defendant’s objection, to give testimony of a similar character. - We think this testimony was improperly admitted.. The, profits of a business are too uncertain, and depend upon too many contingencies to safely be accepted as any evidence of the usable value of the property upon which the business is carried on. e .

Profits depend upon the times, the amount, of capital invested, the social, religions and'financial position in the community of the one carrying it on, and many other elements which might be suggested. What one man might do at a profit, another might only do at a loss. That the plaintiff had made profits in his business in the past was no indication that he would continue to make them in the future, even had the viaduct not been constructed. This testimony being inadmissible, the defendant’s objections thereto should have been sustained. (Matter of Gilroy, 26 App. Div. 314; Masterton v. Village of Mt. Vernon, 58 N. Y. 391; Newton v. Armstrong, 19 N. Y. Supp. 573; Edmands v. City of Boston, 108 Mass. 535; Cobb v. City of Boston, 109 id. 438; Becker v. Philadelphia & Reading Terminal R. R. Co., 177 Penn. St. 252.)

In The Matter of Gilroy (supra) the court said : On the hearing before the commissioners the appellants sought to prove the profits they had made in their business during a term of years. This testimony was rejected ; we think properly. It is. doubtless competent for the landowner to prove the value of the land taken from him for any purpose for which it may properly be used,, and he is entitled to that value even though he may put the property to a different use. It was, of course, competent to show that the property was used for business purposes and was suitable for such purposes, for as a rule business property demands a higher price than property used merely for the purpose of residence. It was, also, competent to show the general character of the business, for property desirable or available for business of a certain character commands higher prices than property only suitable for business of another character, but. the profits' the occupants had realized from the business carried on upon the property does not tend to. show the value of the property itself. * * * The profits of the business would naturally depend far more largely upon the judgment, forethought and business skill of the appellants, the use of their capital and the condition of trade, than upon the value or location of the particular property upon which the business was conducted.”

But it is. unnecessary to further consider the subject. The testimony was inadmissible, and could not be used for the purpose intended. It was just the kind of^evidence to injure the defendant by taking the minds of the jury from the real fact to be ascertained, namely, the damages to the usable value, and that it did injure the defendant is evidenced by the verdict itself.

It follows that for the error thus committed the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Judgment reversed, new trial granted, costs to appellant to abide event.  