
    Mary Powers, Individually and as Executrix of Frances A. Leslie, Deceased, Resp’t, v. The Manhattan Railway Co., App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed April 15, 1890.)
    
    Railroads—Elevated—Damages.
    In an action for damages to property caus' d by the construction of an elevated railroad, the court charged that “the failure of defendant to institute condemnation proceedings before taking possession of plaintiff's property and before the trial of this action, entitled the jury to give exemplary damages against them should the jury so desire. The action was commenced in 1884. Held, that in view of the history of litigation on the question of the right to maintain such actions, it is impossible to find a wrong motive in the entry of defendant or its predecessor upon the street in question, and that the failure to institute condemnation proceedings within the two years following the decision of the Story case was not of itself such a wanton and oppressive act as would justify an award of puniitive damages, and that the charge was, therefore, erroneous.
    Appeal from a judgment of the superior court of the city of New York, affirming^ judgment entered upon a verdict of a jury.
    The action was for damages to plaintiff’s property caused by the construction and operation of the elevated railroad in the city of New York.
    
      Davies & Rajpallo, for app’lt; Roger Foster, for resp’t.
   Brown, J.

At the plaintiff’s request the court instructed the jury “ that the failure of the defendant to institute condemnation proceedings beforé taking possession of the plaintiff’s property and before the trial of this action entitled the jury to give exemplary damages against them should the jury so desire.”

An exception to this charge presents the only error upon which the appellant asks a reversal of the judgment.

We think the exception was well taken. To justify an award of exemplary damages the evidence must show on the defendant’s part malice or fraud or gross negligence. The act causing the damage must be wanton or malicious, or gross and outrageous, orx there must appear a design to oppress and injure.

The purpose of awarding such damages is to punish a wrongdoer,. and unless a wrong motive exists there is no basis for such award.

The elevated road through Division street in front of plaintiff’s property was constructed in 1879, and trains commenced to run March 1,1880. It was leased to the defendant by the Metropolitan Railway Co., May 1, 1879. The road was constructed under legislative authority, and the statutes authorizing the creation of elevated railway companies were declared constitutional. In re Gilbert El. R. R. Co., 70 N. Y., 361; In re N. Y. El. R. R. Co., id., 327.

Whether or not an owner of property abutting on the streets in which the elevated roads were constructed was entitled to damages caused by the construction and operation of the road was a question upon which there was a wide difference of opinion among lawyers and judges, and was not settled until the decision of this court in the case of Story v. The N. Y. El. R. R. Co., in October, 1882, 90 N. Y., 122.

It had been decided adversely to the property owner by the lower courts, and the Story case was twice argued in this court, and from the decision finally made three members of the court dissented.

The facts of the Story case were not broad enough to necessarily cover the case of an abutting owner whose only property in the street was an easement for light, air and access, and hence the right of such owners to maintain actions for damages was not finally set at rest until the decision in Lahr v. Metropolitan Ry. Co. in February, 1887. 104 N. Y., 268 ; 4 N. Y. State Rep., 340. This action was commenced in August, 1884.

In view of these facts thus briefly referred to and which now form one of the most important and interesting chapters in the history of litigation in this state, it is impossible to find a wrong motive in the entry of the defendant or its predecessor, the Metropolitan Railway Company, upon the street in front of plaintiff’s property. It had legislative and judicial authority to support its acts. And assuming that plaintiff owned the fee in the bed of the street in front of his property, we do not think that a failure to institute condemnation proceedings within the two years following the decision of the Story case along the whole line of its railway through the city could be held to be of itself such a wanton and oppressive act as to justify an award of punitive damages.

The respondent claims, however, that the amount of the verdict proves that no exemplary damages were awarded. I do not think this claim is sustained. The verdict is undoubtedly within the estimate given by some of the witnesses, but it is equally true that it is largely in excess of the estimate of others, and we are, therefore, unable to say that the charge of the court which the plaintiff requested did not have weight with the jury and influence their verdict.

The form of the exception is criticised, and it is claimed that it is insufficient to present any question for review in this court, but .we are of the opinion that interpreted in connection with what preceded and followed, it was intended to apply to the request for a ruling upon the question of exemplary damages.

The judgment must be reversed and a new trial granted, with [costs to abide the event.

\A11 concur.  