
    Peter Kearney, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed March 3, 1891.)
    
    1. Railroad—Elevated—Findings.
    In an action against an elevated railroad, the court does not err in refusing to find, as a conclusion of law, that in computing the compensation to be made for the taking of plaintiff’s easements, defendants are entitled to have taken into consideration the benefits resulting to his premises and peculiar thereto from the operation of defendants’ railway. This is not a conclusion of law, but a mediate process in applying the rule of damages.
    3. Same—Damages.
    In estimating the loss of rental value, benefits are not to be deducted from the damages, but to be considered in ascertaining whether there were damages, and a finding of the actual loss is sufficient.
    3. Same—Easements.
    The easements of abutting owners are not confined to the portion of the street directly in front of their premises; and hence, evidence is admissible to show that plaintiff’s light was cut off by shadows cast by defendants’ station which was twenty-five feet distant therefrom.
    Appeal by defendant from judgment entered upon conclusions and findings at special term.
    
      Julien T. Davies and Brainard Tolles, for app’lts; Edwin M. Felt, for resp’t.
   Per Curiam.

This is an action for an injunction against the defendants maintaining their elevated road in front of plaintiff’s premises.

The learned counsel for appellant argues that the court below erred in refusing to make a conclusion of law that in computing the compensation to be made to plaintiff for the taking of his easements the defendants were entitled to have taken into consideration the benefits resulting to plaintiff’s premises and peculiar thereto from the operation of defendants’ railway.

This was not a conclusion of law. It was a mediate process in applying the rule of the measure of damage to ascertaining the damages. In the other findings the court found that the plaintiff sustained a loss in the rental value of the premises amounting to

. This means the loss on the whole of the building, that all parts of the building had been considered, such parts as to which there had been a loss of rental value and such parts as to which there had been an increase of rental value, and that taking all parts together there had been a loss. Benefits are not to be deducted from the damages, but to be considered in ascertaining whether there were damages. Newman v. M. E. B. Co., 118 N. Y., 627; 30 N. Y. State Bep., 36. The court there says, p. 625: “If the rental value of the whole building was shown to have been diminished there was injury for which plaintiff was entitled to recover, but if the diminished rental value of the upper floors was equal or overcome by increased rental value in the store, then there was no injury and no basis for a recovery of substantial damages against the defendants.”

The court below was bound to find the actual loss, and it did so.

It was also argued that the court erred in admitting testimony as to light being cut off from plaintiff’s premises, by shadows cast by the station of the defendant, which was not in front of the premises, and was on the avenue twenty-five feet south of them.

The ground taken is that the easements of the plaintiff are such as exist only directly in front of the premises and are a burden upon the part of the street directly in front and not to any extent on the street north or south. This does not seem to be coincident with the practical use of a street in tending to benefit property upon it. More light is thrown upon the house from the sides than immediately in front. The alternative would be that the street might be closed without compensation, provided the part immediately in front were not taken. There was no error in the admission of the testimony. In Kings Co. Fire Ins. Co., v. Stevens, 101 N. Y., 417, the court seems to hold that under the facts of that case the light or air or convenience of access was not in fact taken from the defendant’s property from the occupation by plaintiff of a part of a supposed street to the side of defendant’s property.

The other objections have been passed upon in other cases, and need not be stated here.

Judgment affirmed, with costs.

Sedgwick, Oh. J., Freedman and Ingraham, JJ., concur.  