
    Mary J. Odell, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 26, 1892.)
    
    1. Railroad—Elevated—Damages—Charge.
    Upon the trial of an action for damages occasioned hy the maintenance of defendants’ road in front of plaintiff's premises, the defendants’ counsel requested the court to find that “ the depreciation caused by the elevated road in the rentals of the living apartments of said building is less than the appreciation or increase caused by the elevated road in the rentals of the store or first floor of said building,” which was refused, on the ground that it was irrelevant. Held, error.
    2. Same.
    As to the effect of the road upon lands not taken, its advantages and disadvantages, benefits and injuries must be considered; and if the benefit equal or exceed the injuries, no damages can be awarded.
    Appeal from a judgment of the general term of the court of common pleas of the city and county of Mew York affirming a judgment entered upon a decision after a trial at special term.
    
      Brainard Tolies, for app’lts ; Charles Cibson Bennett, for resp’t.,
    
      
       Reversing 27 St. Rep., 985.
    
   Haight, J.

The judgment appealed from awards $1200 damages and enjoins the defendants from the further maintenance and operation of their elevated railway in front of the plaintiff’s premises, unless within a time fixed they pay to the plaintiff the sum of four thousand dollars, the value of the easement appurtenant to the premises.

In submitting the case upon the trial the defendants’ counsel requested the court to find that the depreciation caused by the elevated road in the rentals of the living apartments of said building is less than the appreciation or increase caused by the elevated road in the rentals of the store or first floor of said building.” This request was refused as irrelevant, and the exception taken by the defendants to such refusal presents the only question which we are here called upon to determine. The evidence was of such a character as to permit the finding asked for. The refusal of the court as “ irreelvant ” leads us to conclude that it was supposed that the appreciation or increase of the rental value caused by the road could not be considered in determining the amount of damages that should be awarded. The question of benefits has been recently considered in the case of Newman v. M. E. R. Co., 118 N.Y., 618; 30 St. Rep., 36 and in Bohm v. Same, 42 id.,247, in which it was held that as to land taken by the railroad company the full market value must be paid without deduction for benefits; but as to the effect of the road upon lands not taken, its advantages and disadvantages, benefits and injuries must be considered, and if the benefits equal or exceed the injuries no damages can be awarded.

We have carefully examined the case for the purpose of 'determining whether the trial court considered or made allowance for the benefits, but are unable to find any ruling which satisfies us that the question of benefits was determined.

The other questions presented by the record have already been disposed of. Pappenheim v. M. E. R. Co., 40 St. Rep., 445.

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

All concur, except Potter, J., not voting.  