
    Brooklyn Elevated Railroad Company, App’lt, v. John Flynn, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May, 13, 1895.)
    
    Damages — Elevated bailway.
    In a proceeding "by an elevated railway to condemn the easements appurtenant to abutting premises, benefit to one piece oí property cannot be set off against damage to another piece, where they are separate and independent, though incorporated in a single description in the petition.
    Appeal from an order, confirming the report of the commissioners awarding to the defendant compensation for the taking of his easements, and directing the payment by petitioner of an extra allowance and costs.
    Hoadley, Lauterbach & Johnson, for app’lt; Stephen M. Hoye, for resp’t.
   Cullen, J.

This is an appeal from an order confirming the-award of commissioners of appraisal for damages caused by the construction and operation of an elevated railroad. But a single point is raised on this appeal. The property of the respondent, consisted of three separate and distinct, but adjoining, lots, with, stores and dwelling houses thereon, fronting on Myrtle avenue,. Brooklyn. The commissioners found that the value of two of these stores had been enhanced by the construction of the road,. but that the value of the third had been depreciated, and awarded therefor $500. The petititioner, in its petition, described the three pieces as a single parcel, with a single description. The appellant insists that the property should have been treated as a whole, and that the depreciation of the one piece should have been set off against the advantage to the others. We think not. The fact that in the petition the three lots were incorporated in a single description did not make these lots a single entity or unit, if the fact were otherwise. Whether they constituted a single plot, or not, depended on the improvements erected upon them, and the nature and character of their use, and also it might depend in some cases on the ordinary use to which land in the vicinity was put. Here the evidence shows that there was three independent structures on the property, each lot, used and held by itself. Each was therefore entitled to be considered as a separate plot. The case of Railway Co. v. Le Fevre, 27 Hun, 537, does not support the appellant’s claim. That was the case of a dwelling with a tract of ten acres of land surrounding it, the tract divided by a highway. The court held that the case differed from that of separate city lots used independently of each other. In the case of Newman v. Railway Co., 118 N. Y. 618 ; 30 St. Rep. 36, it was held that, in estimating the damage done to an abutting house, the jury should take into consideration any benefit to the house arising from the construction of the road. The case did not involve the right to set off benefit to one piece of property against damage to another piece. An examination of the opinion of Judge Brown shows that the decision did not proceed on any principle of set-off, but on the ground that the injury to adjacent property, not physically taken, could not be the net difference between benefit and injury; and this was so held in the case of Bohn v. Railway Co., 129 N. Y. 579 ; 42 St. Rep. 247, where the opinion of Judge Brown is reviewed and approved. The case of Rich v. Railway Co., 46 St. Rep. 673, so far as relates to the general term decision, is based on the ground that the plaintiff voluntarily, by his complaint, treated his lots as one, and an integral piece of property, and alleged but a single cause of acton therefor. Here the consolidation of the lots was made by the petitioner, not by the owner. Nor do we see any method by which the petitioner could be relieved therefrom, except by the course taken in this case, i. e. by proof on the hearing that there were three separate parcels. It is not necessary to discuss the correctness of the decision in the Rich Case, as it is plainly to be distinguished from that now before us. The order and award appealed from should be affirmed, with costs and disbursements.  