
    Purdy v. The Manhattan Railway Company.
    (New York Common Pleas
    General Term,
    March, 1893.)
    The passage of numerous trains at short intervals over the defendant’s elevated structure, constitutes an inconsistent and excessive street use, and to that extent defendant has taken, and will hereafter occupy, part of plaintiff’s easement of light and air, and this should be taken into account in fixing the amount of damages to be paid by defendant in order to vacate an injunction.
    It is error to admit testimony directly to the fact that benefits were conferred by the proximity of defendant’s railway to the plaintiff's property.
    
      This is an equity action brought by plaintiff, the owner of premises in Sew York city, to restrain the operation of defendant’s railroad in front of her premises, and incidentally to recover damages which have been caused by the maintenance and operation of the same. The issues herein were tried for a second time before Mr. Justice Bischoff in 1891, and thereafter a decision was rendered, upon which judgment was entered, awarding to plaintiff $1,500 as fee damages, and $135 as the annual rental damages. From said decision of judgment the plaintiff took this appeal.
    
      8. G. Adams (O. P. efe J. A. B. Cowles, of counsel), for plaintiff (appellant).
    
      Demies, Short dh Townsend {A. 0. Townsend, of counsel), for defendant (respondent).
   Pbyob, J. (orally).

We are both of opinion, without hesitation, that we are constrained to reverse this judgment. We see among the conclusions of law (p. 39, fol. 156), that the learned trial judge found: “Sixth. The sum fixed which the defendant may pay in order to obviate the injunction herein, should not be greater than a sum necessary to compensate plaintiff for the perpetual maintenance of the defendant’s elevated railroad structure, and exclusive of the damages caused, or to be caused, by the running of the trains thereon.”

During the recess I have procured the report of the Sperb case, 137 N. Y. 155. The decision is in these words: “ The passage of numerous trains at short intervals over the elevated structure, constitutes an inconsistent and excessive street use, and to that extent defendant has taken and will hereafter occupy, part of plaintiff’s easement of light and air, and this should be taken into account in fixing the amount of damages to be paid by the defendant in order to obviate an injunction.”

Now, the learned trial judge here was computing the amount to be fixed as the condition of staying or obviating an injunction, and he says distinctly — we are bound to take his word; we are bound to assume that his judgment was swayed and controlled by it — he says that in estimating that sum he made no account whatever of the future operation of the road.

That question was the very question and the sole question before the Court of Appeals in the Sjperb case. That case was tried before a referee, and he was requested to make the following finding, which he refused: The sum fixed which the defendant may pay in order to obviate the injunction herein should not be greater than a sum necessary to compensate the plaintiff for the perpetual maintenance of the defendant’s elevated railroad structure, and exclusive of the damages caused or to be caused by the running of the trains thereon.” In that case the referee refused to find it. In this case the court did find it in totidem verbis. The referee having refused to find it in the Sjoerb case, the defendant appealed to the General Term, and they reversed the referee because he refused to so find. The Court of Appeals said lie did right to refuse it, and upon that ground they reversed the order of the General Term and affirmed the judgment on the report of the referee. Thus the very point was adjudicated.

But there is another ruling here that we conclude to be fatal error, and that is the admission of testimony directly to the fact that benefits were-conferred by the proximity of this railroad to the plaintiff’s property. Eow, the Roberts case, 128 N. Y. 455, does, if not expressly, yet virtually, adjudicate that such evidence is incompetent. What the witness should have done in this case was to have testified to circumstances showing a benefit, but not directly to the fact of benefit.

We are of opinion that the judgment must be reversed and a new trial ordered, costs to abide the event.

Judgment reversed, new trial ordered.  