
    Gerber v. Metropolitan Elevated R. Co.
    (New York Superior Court
    General Term,
    May, 1893.)
    The plaintiff in an action against an elevated railway company for maintenance and operation of their railway in front of his premises, died, and his infant children and widow were substituted in his stead. The action continued to judgment, which provided that defendants should pay §1,600 as the fee value of easements of light and air, upon receiving a release thereof. Defendants, on appeal from the judgment, objected that the court could not require them to pay for a release by infants, which would be inoperative as a grant and furnish them no protection against a renewed attack by the infants after arriving at age. Held, that the release contemplated by the judgment was a valid instrument, capable of passing title to the easements, and if a release executed by a special guardian, duly appointed, was necessary to pass the title, then the judgment required such a release.
    The referee before whom the cause was tried, at defendants’ request, found that plaintiffs did not own the bed of any part of the street in front of their premises, and that the only property in the street appurtenant to the premises were easements of light, air and access in and over the same, but refused to find ‘ ‘ that said easements, taken for railway uses, aside from any damages to said land from said taking, have, in themselves, only a nominal value.” Held, that the request, as a whole, both in form and substance, was one which the referee properly declined, and his refusal to find thereon as requested, was not reversible error.
    
      Expert testimony as to bow rental values on the street in the immediate neighborhood of plaintiffs’ premises compared at the time of trial with the values in 1873, and how, in like manner, similar values compared in certain specified neighboring side streets, was competent.
    The opinions of experts as to land values and rentals, and of the rise and depreciation thereof, where such witnesses have a practical knowledge of the neighborhood and its surroundings, founded on actual experience and observation, are competent evidence.
    Appeal from judgment entered on report of referee in favor of plaintiffs. The opinion states the case.
    
      Demies & Sapallo and B. L. Mayna/rd, for defendants (appellants).
    
      SaoJcett (& Bennett, for plaintiffs (respondents).
   MoAdam, J.

The judgment restrains the defendants from maintaining and operating their railway in frort of the plaintiffs’ premises, Ho. 949 Second avenue, unless within a time specified they pay $996 as past damages, and $1,600 as the fee value of the easements, upon receiving a release thereof. The evidence sustains the awards made, and the questions requiring serious notice are those presented by the exceptions taken during the trial, and to the findings of the referee and his refusals to find, as requested, by the defendants’ counsel.

The action was originally begun by Edward Gerber, the owner of the fee, as plaintiff. He died before the trial, and his children (who are infants) and the widow were substituted in his stead, and continued the action to judgment.

There was no question but that Gerber’s title descended to his children, subject to the widow’s dower right, but the referee found that in consequence of their infancy they could not give good title. It is objected that the court could not, under such circumstances, require the defendants, as a condition of avoiding the injunction granted, to pay for a release by infants, which would be inoperative as a grant, and furnish, the defendants no protection against a renewed attack by them after their arrival at age. Whether this result would follow a conveyance executed by them under an order of the court in an action prosecuted on their behalf by a guardian ad litem, appointed, and whether a return by them of the consideration would not be a necessary preliminary to such renewed attack, need not be decided now, for the reason that the release contemplated by the judgment is a valid instrument, capable of passing title to the easements, and if a release executed by a special guardian appointed in proceedings for the purpose instituted under the statute (Code, §§ 2348, 2355) is necessary to pass title, then such is the character of the release required by the judgment. This question of form should have been discussed and settled at the time the judgment was signed or brought to the notice of the court below on a motion for resettlement. See Belgard v. McLaughlin, 9 N. Y. St. Repr. 38; Bank v. Kupper, 63 N. Y. 617; Kraushaar v. Meyer, 72 id. 602 ; Beers v. Shannon, 73 id. 297; Baylies New Trials, 6, 7; Simmons v. Craig, 50 N. Y. St. Repr. 212.

Infants are wards of the court and under its protection. Their infancy does not prevent the assertion of their legal rights, nor does it permit the court to withhold from them the legal remedies necessary to their protection. If the defendants conclude that they require a modification of the judgment by directing that the releases be executed by a special guardian to be appointed for the purpose, they are at liberty to make that application at any time, and it will no doubt be considered and properly passed upon. The rule is settled, that while a decree cannot be varied in substance on petition without a rehearing, it may be corrected on motion as to mere clerical errors, or by the insertion of any provision or direction which would have been inserted as matter of course, if the same had been asked for at the hearing, as a necessary or proper clause to carry into effect the decision of the court. Clark v. Hall, 7 Paige, 382; Sprague v. Jones, 9 id. 395. This disposes for. the present of the objection now urged for the first time against the form of the decree.

The referee, at the request of the defendants, found that the plaintiffs did not own the bed of any part of Second avenue in front of their premises, and that the only property in the street appurtenant to the premises were easements of light, air and access in and over the same, and on the refusal ■of the referee to find that said easements taken for railway uses, aside from any damages to the said la/nd from said taking, have in themselves only a nominal value.” The defendants excepted and now urge said exception as reason why the judgment should be reversed. The request is put in disingenuous terms, and seeks to disconnect the easements from the land, and to have them valued aside from the land to which they are appurtenant, in other words, as if there had been no land belonging to the plaintiffs capable of injury by the taking of the easements. Such a surgical operation cannot be required from a court or referee, in a finding of facts.

In Bohm v. Metropolitan, E. R. Co., 129 N. Y. 588, the court said: When a person interferes with such light, air or access and takes it, he takes nothing which is alone and intrinsically valuable, but only as its loss affects the adjoining land.”

In Mitchell v. Metropolitan, E. R. Co., 132 N. Y. 553, the ■court, referring to a somewhat similar matter, said: “ Such requests present only part of the case, and without more would not present the question now urged. Plaintiffs’ easements of light and air were taken to the extent that they were destroyed or fenced out. The taking and the permanent means of taking must, in measuring their value, be considered together.”

In Bookman v. R. R. Co., 50 N. Y. St. Repr. 703, the request was limited to consequential damages, aside from any injury to the land. There was no such qualification here. The distinction may seem subtle, but not more so than the request which the referee refused in this case. The easements of light, air and access' to avenue or street property are indispensable necessities, and have always been considered of a substantial character, sufficiently so to warrant substantial damages or the granting of equitable injunctive relief in case of them impairment. Bohm v. Met. El. R. R. Co., 129 N. Y. 576. The request as a whole, both in form and substance, was one. which the referee properly declined, and his refusal to find thereon as requested is not reversible error.

The other exceptions in the case relate to the evidence of the experts.

Our attention has heen called to portions of this testimony, wherein the defendants claim that the experts were allowed to make comparisons as to value and damage to property in the avenue and neighboring side streets.

The expert Curtis was allowed to testify to how the fee and rental values on Second avenue, between Forty-ninth and Fiftieth streets, compared at the time of trial with the values in 1872, and how in like manner similar values compared in certain specified neighboring side streets. We think this testimony was competent. In Becker v. Metropolitan R. Co., 131 N. Y. 511, the court remarked: There was no intention * * * to hold evidence of value in the side streets to be inadmissible, or to deprive the court of a right to draw the inference from it, together with other evidence in the case, that the property of the plaintiff had been damaged by being deprived of a greater increase in value by reason of the building of such a structure.” The opinions of experts as to the value of lands and rentals, and of the rise and depreciation thereof, when such witnesses have a practical knowledge of the neighborhood and its surroundings, founded on actual experience and observation, are as a rule competent evidence as to such matters, and often the only attainable proof of the fact. Their testimony, within properly-defined limits, cannot be arbitrarily excluded, even in an elevated railway case. Though not of a conclusive character, such evidence, if satisfactory, at times furnishes a safe and reliable guide which would be unsafe to dispense with. A defendant can always protect himself against any danger arising from it by furnishing in answer thereto evidence of the same general character.

There is no expert evidence in the case like that condemned in Roberts v. New York El. R. Co., 128 N. Y. 455; Doyle v. Manhattan R. Co., Id. 488; Gray v. Manhattan R. Co., Id. 499, and for this reason those cases are inapplicable. The .action seems to have been fairly tried, and a proper result .arrived at. For these reasons, the judgment appealed from must be affirmed, with costs, but without prejudice to any application the defendants may elect to make respecting any amendment to the decree they may deem necessary, in regard to the form of release, to be executed by the infant heirs on receiving compensation for the easements taken.

Sedgwick, Oh. J., and Fbeedman, J., concur.

Judgment accordingly.  