
    Ellen Stacey, Respondent, v. The Metropolitan Elevated Railway Company and The Manhattan Railway Company, Appellants.
    
      Damage by an elevated railroad — an abutter, not showing depreciation, must show that his property has not shared in the general increase of value—-not that the railroad has changed the eharracter of the street.
    
    An abutter upon the line of one of the New York elevated railroads, who shows no depreciation in the value of his property, is not entitled to recover damages unless it is made to appear that by reason of the presence of the railroad he has not obtained the enhancement in price which might naturally be expected from the increase and growth of the city, and in which other property in the vicinity, off the line of the roads, has shared.
    He is not entitled to recover damages resulting from the fact that the presence of the elevated railroad has changed the character of the street, but only for the injuries caused by the presence of the structure before his house, and the operation of the trains thereon so far as the same affect the light, air and access to the property.
    Appeal by the defendants, The Metropolitan Elevated Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of June, 1896, upon the decision of the court rendered after a trial at the New York Special Term.
    This appeal was transferred from the first department to the Second department.
    
      Merrill W. Gallaway and Julien T. Davies, for the appellants.
    
      James C. Van Siclen, for the respondent.
   Cullen, J.:

This is the usual abutter’s action for damages occasioned by the construction and operation of an elevated railroad on Second avenue, in the city of New York. The premises consist of a house and lot on the east side of the avenue, near One Hundred and Twenty-fifth street. The improvements on the lot are a three-story and basement, high-stoop, brownstone house, twenty feet wide by forty-two feet in depth. The learned judge at Special Term awarded no recovery for diminution of the rental value, but allowed the plaintiff the sum of $2,500 for the depreciation of the fee.

We think the evidence was insufficient to justify this award. The testimony is meagre. The expert examined for the plaintiff testified that in 1872 the value of the property was about $12,000, in 1879 about $10,000, in 1881 about $8,000, and at the time of giving his testimony of the same value. The railroad was constructed in front of the premises in the year 1878. On cross-examination the witness further testified that he did not mean to say that values on Second avenue had depreciated since 1880, but, on being further probed, we think he substantially conceded that the value of the lots, apart from improvements, in this portion of Second avenue, had nearly doubled in the period from 1880 to 1895. The witnesses for the defendant testified that the value of plaintiff's property was greater now than at the time of the construction of the elevated railroad. There being no depreciation in the value of plaintiff's property, she was not entitled to recover damages unless it was made to appear that, by reason of the presence of the railroad, she had not obtained the enhancement in price which might naturally be expected from the increase and growth of the city, and in which other property in the vicinity, off the line of the road, had shared. We think this was not shown. It is true the value of the plaintiff’s property as a whole has appreciated but little, but the explanation of this is entirely plain. The improvement on the plaintiff's lot is unsuited to the present condition of the neighborhood. The lot itself has doubled in value, but its advantageous use would now be as the site of a shop with tenement apartments above. The locality being no longer desirable for single residences, the plaintiff’s building counts for little, if anything, in the value of the whole property. This change in the character of the locality has been caused by the advance of business, and it may be also by the presence of the elevated railroad. So far as the elevated railroad may have changed the character of the street, any injury suffered from that cause is indirect and gives the plaintiff no right to recover. She is entitled to recover only for the injury to her premises, caused, not by the change in the character of the street, but by the presence of the structure before her house, and the operation of the trains thereon, so far as'the same affect light, air and access to her property. ISTo injury has proceeded from this cause, for it appears by the testimony of the plaintiff that the elevated railroad has not diminished or injuriously affected the rent which she has received from the property used as a private dwelling.

The judgment appealed from should be reversed and a new trial granted, costs to abide the final award of costs.

All concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  