
    Julia A. Kent, Individually and as Trustee under the Will of Ellen Kent, and Others, Respondents, v. The Manhattan Railway Company, Appellant.
    
      Elevated railroads—when the rental damages are excessive as compared with the fee damages — rental damages allowable to the date of docketing of the award for fee damages.
    
    Where, in condemnation proceedings instituted by an elevated railroad, the owner was awarded fee damages of §750, the court considered a subsequent award of §1,462.52 for rental damages for some ten years to be excessive. "
    The award of rental damages, from the time when the award was made to the time • when the award was paid, is not erroneous where the award had not been docketed as a final judgment.
    Appeal by the defendant, The Manhattan Railway Company, from a judgment of the Superior Court of the city of New York in favor of the plaintiff's, entered in the office of the clerk of said court on the 18th day of November, 1895, upon the decision of the court rendered after a trial at a Special Term thereof.
    
      James C. Bushby and Julien T. Davies, for the appellant.
    
      H. G. Atwater, for the respondents.
   Van Brunt, P. J.:

This action was commenced for an injunction and damages by an abutting owner. Upon the consent of both parties an interlocutory judgment was entered on the 31st of October, 1893, enjoining the defendant from further maintaining its railway in front of plaintiff’s premises, unless within a time limited therein it acquired title to the easements appurtenant to said premises. It was further ordered and adjudged by said decree that the question as to the amount of ■damages theretofore occasioned to the rental value of said premises should be reserved until the further order of the court. Pursuant to said decree the defendant commenced condemnation proceedings, in which commissioners were duly appointed, and the report of such ■commissioners awarding the plaintiff $750 as fee damages was confirmed on the 5th of July, 1894. This award was paid on the 17th ■of November, 1894.

The issues in this action concerning the rental damages were ¡subsequently tried on the 21st of March, 1895, and the court .awarde... rental damages at the rate of $150 a year from the 14th of' February, 1885, six years before the commencement of the action, to November 17, 1894, the date at which the defendant paid the .award to the plaintiff, amounting in all to the sum of $1,462.52. An additional allowance of five .per cent,, computed ■ upon that ¡amount, was also given. Evidence was offered upon the part of the plaintiff to sustain the issue as to rental damages. It seems to ns, upon an examination of this evidence, that the award made was •excessive. It appears by the judgment in the condemnation- proceedings that the fee damage sustained amounted to $750, and this adjudication in that proceeding, being between the same parties and1 affecting the same subject-matter, is conclusive; and an award of twenty per cent rental damage upon a fee damage of $750 is upon its face excessive; and there is no evidence in the case justifying ¡such a high rate of rental damage in view of such a low rate of fee •damage.

It is urged upon the part of the plaintiff that the award in question is not conclusive between the parties. It seems to us that that •question cannot'be again litigated between these same parties, and that as there is an undoubted relation between fee damage and rental damage, a rental damage of twenty per cent upon the fee damage is manifestly excessive. We think that the rental damage should be reduced to seventy-five dollars a year, and the extra allowance modified accordingly.

In regard to the alleged error committed in allowing rental damage from the 5th of July, 1894,- to the 17th of November, 1894, it seems to be sufficient to say that the objection might have been well taken had it appeared that the award had been docketed as a final judgment. But it does not appear that any judgment had been entered, and consequently the condemnation proceedings were not entirely completed.

During the progress of the trial objection was taken-to the evidence offered in reference to the rent of the premises Ro. 309 Pearl street, which the witness under examination stated was a store and four-story building used as a hotel. The ground of the objection was that the property was dissimilar from the premises in suit. The court overruled the objection and the defendant’s counsel duly excepted. It might be, had the court upon this appeal come to a different conclusion in regard to the effect of the award in the condemnation proceedings, that the receipt of such evidence would have called for a reversal of the judgment, as it might well be that its introduction affected the decision of the court in regard to rental damages. But, in view of the conclusion at which we have arrived as to the effect of such award, the evidence in question seems to be entirely immaterial and does not call for a reversal.

The judgment should be modified as above indicated, and, as modified, affirmed, without costs.

Barrett, Rumsey, Williams and Patterson, JJ., concurred.

Judgment modified as directed in opinion, and affirmed, as modified, without costs.  