
    HENRY BISCHOFF, Respondent v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.
    
      Elevated railroad, evidence as to benefits from—When easements appur tenant to rear portion of building not cut off by intervening wall on ground floor—Evidence as to effect of railroad upon other property, when dissimilarity of such property not material—Eirect evidence of damage from the railroad—Recovery of rental damage during remaining period of lease outstanding at date of plaintiff's purchase.
    
    In an action to secure an injunction and incidental damages against an elevated railroad with respect to premises on Park Bow, the trial judge refused to find at defendants’ request that the station in Park Bow near plaintiff’s premises and the great number of people drawn thereby to the vicinity of plaintiff’s premises constituted a special benefit thereto from the same. Held, no error. The request involved a question of fact whether the persons drawn into the vicinity of plaintiff’s premises were likely to become customers at the same, which fact further depended on the occupations, means, and places of home and business ■ of the passers-by. The refusal of the judge to find upon this question of fact cannot be disturbed.
    A portion of the premises in suit, known as No. 20 Duane street, is not so cut off from the advantage of light and air from Park Bow by solid separating walls without openings as to deprive such portion of easements in Park Eow, the first floor of No. 20 Duane street being the continuation of a floor in No. 1 Chambers street. Beyond this, No. 20 Duane street in its front had an easement which was not limited to Duane street hut extended easterly to Park Eow.
    The plaintiff put in evidence the rents of Sweeny’s hotel, situated on Park Eow, a short distance from plaintiff’s premises, from 1879 to the time of the trial. The defendants objected to this evidence as indefinite, irrelevant, and not within the issues in this action. Held, that it was within the scope of the action to ascertain what the effect of the railroad had been upon Park Eow either in decreasing or increasing rental or foe values. There was no special objection taken because the rent was a matter of bargaining between others than the parties to this suit. For want of a particular objection, the action of the court should be sustained. The dissimilarity of the hotel from the premises in suit in respect of structure and kind of occupation, was immaterial to the inquiry of whether, in a course of years, rents on Park Eow had increased or decreased.
    The plaintiff called-as a witness one Harnett, who testified as to the values of real estate. On cross-examination, he was asked by defendants’ counsel, can you give the value of Mr. Bischoff’s building ? The answer was, that he supposed the building to-day would sell for about $60,000 or $65,000. He further testified that another building in Park Eow sold for $85,000, and that plaintiff’s building was a little larger than the other. Defendants’ counsel then asked: “Q. Is it on account of the difference in the building that you make the $25,000 difference.” The answer was “I make the damage the elevated railroad has done.” On re-direct examination plaintiff’s counsel asked: “ Q. In estimating for counsel for defendants you said you allowed so much for damage from elevated road to plaintiff’s property. How much did you allow ? “ The question was objected to as asking for the opinion of the witness as to the damage. The court also asked: “How much did you allow in the estimate already given.” The witness answered, “I stated from $60,000 to $65,000. I figured the damage done from $30,000 to $35,000. In other words, I think the property would sell for $100,000, if put up at auction to-day, if the elevated road was not there. That is the way I made up my estimate.” The defendants’ counsel asked that the latter part of the answer be stricken out, as irresponsive and incompetent. Held, that the plaintiff could not properly be prevented asking the particulars of the evidence drawn out by the defendants. There was no new subject alluded to. He had already given in substance what he believed the property to be worth without the railroad, for he said it was worth then $60,000 to $65,000 and $25,000 damages had been done. His last answer increased the amount. That would afford matter for observation upon the witness’ testimony, but would not make the testimony incompetent. Whatever the purpose of the defendants in asking the question, the plaintiff had a right to examine to frustrate that purpose if possible. And a failure on the part of the plaintiff to accomplish this would not make questions they had asked incompetent.
    At the time the plaintiff purchased the premises in 1884, there was an outstanding lease on the premises which had still three years to run. Held, that it was proper to award the plaintiff rental damages during that period.
    Before Sedgwick, Ch. J., Dugro and. Gildersleeve, JJ.
    
      Decided May 9, 1892.
    Appeal by defendants from a judgment entered upon the decision of a judge at special term. The action was brought to secure an injunction and incidental damages against the defendants’ elevated railroad with respect to the plaintiff’s premises in Park Bow.
    
      Davies & Rapallo, attorneys, and Brainard Tolles of counsel, for appellants.
    
      Peckham & Tyler, attorneys, and W. G. Peckham of counsel, for respondent.
   Per Curiam.

The action is to restrain defendants from maintaining their elevated road and from running their cars thereon in front of plaintiff’s premises.

It is argued for the appellants, that the judge incorrectly refused to find as requested in the 50th and 51st proposed findings of fact. These are : There is a station of defendants’ railroad near plaintiff’s premises, which is daily used by great numbers of people, some of whom pass through Park Eow in front of plaintiff’s premises, and the existence of station and railroad and the great numbers of people thereby drawn to the vicinity of the plaintiff’s premises constitute a special benefit to said premises. The first request has no importance. It relates to some people. That some people passed the plaintiff’s premises could not affect the value of those premises. Whether great numbers of people being drawn to the vicinity of plaintiff’s premises would constitute a special benefit to them, would depend upon the likelihood of their becoming customers at plaintiff’s premises or perhaps purchasers of them. Whether there would be such advantage would again depend upon the occupations, means, and the places of the homes and business, of the passers-by. The question is of fact for the judge and his refusal to find should not be disturbed. This is perceived in the description of the crowds, candidly given by the counsel for the appellants. He says : Great numbers of persons employed in the factories, warehouses and places of business in this part of the city use these stations every day and usually pass through some portion. of Park Eow in going to or from the station.”

The learned court took into consideration fully the advantages or benefits conferred on the property by the railroad. And except, in rare cases, it is always done wherever the market value of the abutting land is proven, for the advantages, general or special, have gone into the land and affected its value.

The counsel for the defendants asked that this finding of fact be made. It was “ 62nd. The portion of plaintiff’s premises, known as No. 20 Duane street, constitutes a separate building with a separate entrance, separate walls and no frontage on Park Eow. No easements over Park Eow are appurtenant.” The evidence does not seem to show that between the two so-called separate buildings there is any separating wall so solid and without openings'that the Duane street building is cut off from the advantages of light and air that are derived from Park Row. At one time the easements from Park Row were appurtenant to the Duane street part of the property. So far as the latter is concerned there is no proof that it has been extinguished. The relation of the buildings is such that, for instance, the first floor of 20 Duane street is a continuation of a floor in No 1 Chambers street. Beyond this No 20 Duane street, in its front, had an easement which was not limited to Duane street but extended easterly to Park Row. The judge would not have been justified in finding as requested. Stevens v. The N. Y. El. R. R. Co., 28 N. E. R., 667.

The plaintiff was allowed to prove what had been the rents of Sweeny’s hotel, from 1879 to the present time. That hotel was a short distance from the plaintiff’s house. Questions on this subject were objected to on the ground that they were indefinite and irrelevant and did not relate to the premises in question and were not within the issues in this action. It was within the scope of the action to ascertain what the effect of the railroad had been upon Park Row, either in decreasing or increasing rental or fee values. There was no special objection taken because the rent was a matter of bargaining between others than the parties to this suit. In these suits evidence is often allowed without objection upon a direct examination. For want of the particular objection, the action of the court should be sustained. The dissimilarity of the hotel from the premises in suit in respect of structure and kind of occupation was immaterial to the inquiry of whether in a course of years rents on Park Row have increased or decreased.

The plaintiff called as a witness one Harnett, who testified as to the values of real estate. On cross-examination he was asked by defendants’ counsel, Can you give the value of Mr. Bischoff’s building ? The answer was that he supposed the building to-day would sell for about $60,000 or $65,000. He further testified that another building in Park Row sold for $85,000, and that plaintiff’s building was a little larger than the other. Defendants’ counsel then asked: Q. “ Is it on account of the difference in the building that you make the $25,000 difference ? ” The answer was, I make the damage the elevated railroad has done.” On redirect examination plaintiff’s counsel asked: Q. “ In estimating for counsel for defendants you said you allowed so much for damage from elevated road to plaintiff’s property. How much did you allow ? ” The question was objected to as asking for the opinion of the witness as to the damage. The court also asked, How much did you allow in the estimate already given ? The witness answered, I stated from $60,000 to $65,000. I figured the damage done from $30,000 to $35,000. In other words I think the property would sell for $100,-000, if put up at auction to-day, if the elevated road was not there. That is the way I made up my estimate.” The defendants’ counsel asked that the latter part of the answer be stricken out, as irresponsive and incompetent. The plaintiff could not properly be prevented asking the particulars of the evidence drawn out by the defendants. There was no new subject alluded to. He had already given in substance what he believed the property to be worth without the railroad, for he had said it was worth then $60,000 to $65,000 and $25,000 damage had been done. His last answer increased the amount. That would afford matter for observation upon the witness’ testimony, but would not make the testimony incompetent. Whatever the purpose of the defendants in asking the question, the plaintiff had a right to examine to frustrate that purpose if possible. And a failure on the part of plaintiff to accomplish this would not make questions they had asked ’incompetent.

The reduction of rent on an outstanding lease was not negligent or without cause. The plaintiff testified that he could not get the rent from the tenant in its full amount, and therefore he lowered it to $60 a month. The judge was justified in finding that the plaintiff’s action was -due to business expediency or necessity, in endeavoring to get the largest rent that could be got.

The action of the judge in giving damages from 1884, when the plaintiff acquired the property, and through three years of a then pending lease, is in accordance with the decision of Korn v. The N. Y. El. R. R. Co., 15 N. Y. Supplement, 10.

Other exceptions have been examined and do not call for a reversal of the judgment. 1

Judgment affirmed, with costs.  