
    BRUSH v. MANHATTAN RAILWAY COMPANY.
    
      N. Y. Common Pleas, Equity Term ;
    
    
      November, 1890.
    1. Railroads; elevated ; damages to abutting owners; injunction; when not barred by delay or acquiescencel\ In an action by abutting owners against an elevated railway company to enjoin the operation of the road, and incidentally for damages caused by its prior maintenance and operation, in which it appeared that, while the operation of the road was begun in 1878, no claim for damages, by suit or otherwise, was made until this action was commenced in 1889, and that, in 1885, the plaintiffs contributed to the expense of the erection of an elevator in front of their premises to facilitate the access of passengers to the defendant’s station, and united in a lease thereof to the railway company for fifty years upon its covenant to operate the same at its own expense.—Held\ that these facts did not constitute such laches and asquiescence as to bar the action for injunctive relief, (1). Because it was not settled by judicial authority until 1887, that the defendants’ acts were illegal as to abutting owners, like the plaintiffs, whose only property in the street was an easement of light, air and access, so that the plaintiffs were ignorant of their rights during the period of delay, and at the time of the erection of the elevator, and (2) because the injunction, being sought in support of a strict legal right, mere delay and acquiescence would not defeat the remedy,, unless it came within the operation of the statute of limitations.
    2. Injunction; issues to jrevent substantial injury only; abutting owners action to enjoin elevated railway.] The rule that an injunction issues only to intercept a substantial injury, and that this extraordinary remedy will not be applied to prevent even a conceded wrong, if it be of trivial consequence,—applied in abutting owners’ action against an elevated railway for an injunction, and incidentally for damages to the plaintiffs’ easement of light, air and access, and the complaint dismissed upon evidence showing, to the satisfaction of the trial court, that since the construction of the railroad the plaintiffs’ property had largely increased in rental value, and that such improvement was due, chiefly, if not exclusively, to the operation of defendant’s railroad in immediate proximity to the plaintiffs’ property.
    
      3. Damages from operation of elevated railroad to abutting owner ; offset of be?iefitsl\ Although in such an action, the railroad company is not to be credited with the general appreciation of property resulting from the growth of public improvements, the construction of railroads, aud improved means of transit, yet the railroad company are entitled to offset against the plaintiffs’ claim to damages, any special and peculiar benefit, such as the enhancement of the value of the plaintiffs’ property, accruing from the contiguity of the railroad or the proximity of the station.
    
    Trial by the court.
    This action was brought by Sarah B. Brush and another against the Manhattan Railway Company and the Metropolitan Elevated Railroad Company, to enjoin the operation of the defendants' elevated railroad in front of plaintiffs’ premises, and for damages for its-prior maintenance and operation.
    The facts are fully set forth in the opinion.
    
      E. W. Tyler (Peckham & Tyler, attorneys), for the plaintiffs.
    
      Edward C. James (Davies, Short & Townsend, attorneys), for the defendants.
    
      
       See note at the end of this case.
    
   Pryor, J.

The action is in equity, to enjoin the maintenance and operation of defendants’ railway along the street in front of plaintiffs’ premises, and incidentally to recover past damages caused by such maintenance and operation (Shepard v. Manhattan Ry. Co., 117 N. Y. 442, 448 ; Henderson v, N. Y. Central R. R. Co., 78 Id. 423, 430).

At the close of plaintiffs’ case, and again on the conclusion of all the evidence, defendants moved to dismiss the complaint as a suit in equity for injunctive relief. The motion was denied, and defendants excepted ; but the question presented by the motion recurs now upon the final determination of the case.

The special grounds of the motion were laches on the part of the plaintiffs in instituting their action to restrain the construction and operation of the railroad, and acquiescence by plaintiffs in such construction and operation.

The railroad was constructed and put in operation in front of plaintiffs’ premises on Sixth avenue, the 5 th day of June, 1878, and was constructed and put in operation in front of plaintiffs’ premises on Eighth avenue, “ at various times between June ' 1st, 1878, and January 1st, 1879.”

Plaintiffs’ ancestor, owner of the properties at the time of the construction of the railroad, opposed its construction; but it is not apparent what specific measures of opposition he took, nor that he presented any formal objection to the construction and operation of the railroad. In 1885 the plaintiffs, in whom the title to the properties then resided, contributed money to the erection of an elevator in front of their premises on Eighth avenue, in connection with defendants’ station, for the purpose of facilitating access to the railroad ; and July 29, 1885, at a yearly rental of one dollar, leased the elevator to the railway company for a period of fifty years, the railway company covenanting, at its own expense and charge, to operate said levator for the public use during the term of said lease, to meet all trains stopping at said station on its road,’’ etc. In fact, the connection of plaintiffs with the erection and lease of the elevator was indirect, and through the instrumentality of a corporation in which they were stockholders; but, to give full effect to defendants’ contention, I assume their immediate implication in the acts alleged as operating an acquiescence in bar of injunctive relief.

I own that, in view of the principles regulating the exercise of the jurisdiction to award injunctive relief, I was strongly of opinion on the argument that, by laches and acquiescence, plaintiffs had precluded themselves from recourse to this extraordinary remedy. But subsequent examination of the rulings of the courts of appellate as well as of original jurisdiction, satisfies me that the circumstances above recited are ineffectual as a bar to injunctive relief between the parties to this litigation. In Platt v. Platt (58 N. Y. 646), the court, in applying a familiar rule, say “ laches ■ cannot be said to exist where a party is ignorant of his right,-,'’ and, in effect, where they are obscure or doubtful.

And, upon this principle, a party cannot, by acquiescence, lose a right' of the existence of which he is not aware, the requisites to estoppel by acquiescence being “ knowledge or notice of the transaction, and knowledge of the party’s rights ’’ (2 Pomeroy’s Eq. Jur. §§ 965, 817). “If a party, fully cognizant of his rights, permits a public corporation to expend,” etc., he will be estopped by acquiescence (Baltimore & O. R. R. Co. v. Strauss, 37 Md. 238). In Powers v. M. R. Co. (120 N. Y. 178), an action for injury to an abutting property owner from the construction and operation of defendants’ railway, the question was, whether plaintiff could recover exemplary damages on the ground that defendants’ wrong was willful or grossly negligent. The courts below ruled in the affirmative ; but the court of appeals reversed the judgment, and for the reason, that not until the decision of the Lahr case in January, 1887, (104 N. Y. 268), was it definitely settled that defendants’ act in constructing and operating its railroad was illegal and wrongful as to abutting owners, whose only property in the street was an easement of light, air and access. The court added that a delay of two years by defendant to institute condemnation proceedings after it was adjudged to be a trespasser, “ could not be held of itself such a wanton and oppressive act as to justify an award of punitive damages.” Now, unless the wrongdoer be entitled to a more lenient construction of his conduct than will be accorded to the victim of the wrong, and is to be allowed immunities withheld from the suitor who asks reparation for the wrong, a proposition which surely will not be urged in a court of equity, it results that the same uncertainty as to the law which exempts the defendant from the full measure of liability which it would otherwise incur, preserves to the plaintiffs those rights which, had they been ascertained and settled, might have been lost by laches and acquiescence. That which is insufficient to impose a penalty on the wrongdoer, must be ineffectual to afflict the sufferer with a forfeiture.

Plaintiffs’ rights were not determined and known until January, 1887 (120 N. Y. 183), this action was commenced 1st June, 1889, and the delay is not so great as, of itself, to bar the plaintiff of equitable relief. It might be otherwise had defendants, in the interval between the ascertainment and the assertion of their rights by plaintiffs, incurred any obligation, or expense, or inconvenience, on the faith that plaintiffs assented to or acquiesced in the wrong; had defendants upon such belief or supposition in any way altered their position; but this inference is justified by no evidence in the case. On the contrary, it is entirely clear that plaintiffs’ non-action had no influence whatever upon the maintenance and operation of defendants’ railroad.

As to the specific act of acquiescence on which the defendants rely—namely, the construction and lease of the elevator by plaintiffs—it suffices to say that, even were the act in itself operative and effectual as ' an acquiescence, it was transacted in 1885, two years before plaintiffs’ rights were ascertained and settled (120 N. Y. 183), and so does not preclude plaintiffs from a relief which they did not then know to be open and accessible to them.

Again, in the present action, plaintiffs ask an injunction for the protection of legal rights, which otherwise would be without adequate security. But, “ the effect of delay is subject to the important limitation that it is properly confined to claims for purely equitable remedies, to which the party has no strict legal right. Where an injunction is sought, in support of a strict legal right, the party is entitled to it if his legal right is established ; mere delay and acquiescence will not, therefore, defeat the remedy, unless it has continued as long as the right itself.” (2 Pom. Eq. Jur. § 817.) Accordingly, in Ormsby v. Vermont Copper Mining Co. (56 N. Y. 623), the court ruled that “ the doctrine of laches and acquiescence as a bar to an action through lapse of time, finds its just application in respect to equitable rights only ; as to legal rights, mere lapse of time before an action to enforce them is of no moment, unless it come up to the requirements of the statute of limitations,” which is not the case here (Campbell v. Seaman, 63 N. Y. 568).

If it do not appear that any action of the defendant has been induced by the delay, plaintiff is not estopped by the delay (Boardman v. Lake Shore, etc. R. R. Co., 84 N. Y. 158 ; N. Y. Rubber Co. v. Rothery, 107 Id. 310; Snow v. Williams, 16 Hun, 468). So, of mere delay where defendant has not been prejudiced (McMurray v. McMurray, 66 N. Y. 176 ; Platt v. Platt, 58 Id. 646; Ode v. Manhattan R. R. Co., 56 Hun, 199). So, of mere delay so long as the parties remain in statu quo (Snow v. Williams, supra). So, to constitute an estoppel, there must be proof that defendant relied upon the acquiescence (Ross v. Manhattan R. R. Co., 29 State Rep. 517).

Finally, “ a court of equity applies the rule of laches according to its own idea of right and justice. Every case is governed strictly by its own circumstances. Whether the time the negligence has subsisted is sufficient to make it effectual is a question to be resolved by the sound discretion of the court ” (Brown v. County, 95 U. S. 157, 160); and “in the exercise of that discretion they use the statute of limitations as a guide to their action” (Coit v. Campbell, 82 N. Y. 509, 514).

Applying the principles above stated to cases identical with or analogous to the present, the courts have decided that injunctive relief was not precluded by laches or acquiescence. Thus, in an action exactly similar to this, and against these defendants, the general term of the supreme court, first department, unanimously held that the right of plaintiff to assert his rights before those rights were definitely determined by the court of last resort did not operate as laches or as acquiescence to the extent of precluding him from injunctive relief (Ode v. Manhattan R. R. Co., 56 Hun, 199; Ross v. Manhattan R. R. Co., 29 N. Y. St. Rep. 517; Carter v. N. Y. Elevated R. R. Co., 14 Id. 859; Corning v. Troy Factory, 40 N. Y. 202-207 ; Batchelder v. Gunhorn, 24 N. H. 474).

But the case most decisive of the question under discussion is Snow v. Williams (16 Hun, 468). The action was by a riparian owner to restrain defendants, proprietors of a cheese factory, from discharging unwholesome and offensive substances into the stream. Plaintiff knew when the factory was built that it was the custom to discharge such substances into streams, and he made no objection when such discharges were spoken of; the factory was put in operation in the spring of 1874, during which season and that of 1875 plaintiff patronized it, and made no objection to the discharge into the stream ; the action was brought in 1877; held that plaintiff was not estopped from maintaining the action, and the injunction issued. Upon principle and authority, therefore, I conclude that plaintiffs are not precluded from injunctive relief by laches or acquiescence.

But defendants moved to dismiss the complaint for insufficient proof of title to equitable relief; and so moved severally in respect of the premises in Sixth avenue and in Eighth avenue ; and the question is, do plaintiffs show a right to enjoin the maintenance and operation of defendants’ railway in front of either of their properties ?

It is fundamental and a familiar rule of equity jurisprudence that an injunction issues only to intercept a substantial injury, and that this extraordinary remedy will not be applied to prevent even a conceded wrong, if it be of trivial consequence (People v. Metropolitan Telephone Co., 31 Hun, 596-604; Blake v. City of Brooklyn, 26 Barb. 301 ; Attorney-General v. Sheffield, 3 De G. M. & G. 304; McLaury v. Hart, 121 N. Y. 636-643).

Admitting a wrongful encroachment upon plaintiffs’ easements by defendants’ railway structures, and a consequent obstruction of light, air and access, does it appear that these injuries have reduced the rental or the permanent value of plaintiffs’ properties ? All presumptions are against the wrongdoer, and he cannot complain that the exact amount of damage has not been proved with mathematical precision (Drucker v. Manhattan Ry. Co. 106 N. Y. 157); but still it must be apparent from the evidence that he has suffered some pecuniary loss (Leeds v. Metropolitan Gas Light Co., 90 N. Y. 26-30). In Newman v. Metropolitan El. R. R. Co. (118 N. Y. 619), the court held, that for the taking of plaintiff’s easement in the highway, “ there would be no compensation beyond a nominal sum;” that “his right to recover would rest chiefly upon proof of consequential damages ; that “ his right to compensation is measured, not by the value of the easements separate from his land, but by the damages which the land sustains because of the loss of the easementsthat “ the increase of value resulting from the growth of public improvements, the construction of railroads and improved means of transit, accrues to the public benefit generally, and the general appreciation of property consequent upon such improvements belongs to the property ownerand the railroad company is not to be credited with it; but that “ special and peculiar advantages which property receives from the construction and operation of the road, and the location of the stations,” are .chargeable to the owner ; and that if, upon setting off these special and peculiar benefits against the injuries inflicted by the railroad, “the result is beneficial, there is no damage and nothing can "be awarded.” Obviously, any enhancement of the value of property accruing from the contiguity of the railroad, or the proximity of a station, is a “ special and peculiar ” benefit, not common to the general public— just as the injurious effects of a nuisance upon adjacent properties are “special and peculiar,” so as to sustain a private action, no matter how great the number of such properties so affected.

What, then, is the balance of benefit and injury to plaintiffs’ properties from the construction and operation of defendants’ railway ? Is the net result a loss or a gain in value ? Have plaintiffs shown—for it is upon them to show—such a substantial injury to their properties as authorizes a court of equity to intervene with its extraordinary process of injunction ?

i. As to the Sixth avenue property, plaintiffs produce expert evidence that the property is of less value than before the construction of the railroad; but defendants present equal evidence of the same sort, that the property is of greater value since the construction of the railroad. Here is no preponderance of proof for plaintiffs. Then plaintiffs attempt to corroborate the testimony of their experts by evidence that adjacent properties in the same street have fallen in value since the railroad; but this is met and repelled by conclusive proof that still other properties in the same street, in the presence of the same railroad, have increased in value three and four hundred per cent. Again,- plaintiffs give evidence that in some streets and avenues not affected by the railroad, property has risen in value; but this again is overcome by proof that in some streets and avenues where the railroad runs, property also has increased in value. Finally, plaintiffs give evidence which might warrant the inference that their property would have been more largely enhanced in value but for the presence of the railroad; but the inference is rebutted by the conceded fact that the locality of the plaintiffs’ property is of the most disreputable and repulsive character, .and that this cause accounts for the slight improvement in its value. And so the evidence of the respective parties is so balanced by opposing probabilities, that I cannot find that plaintiffs have discharged themselves of the burden of proof. But an undisputed fact in the case furnishes a satisfactory solution of the problem. It appears by uncontradicted evidence, but indeed no evidence was needed to establish, that a certain ratio exists between the rental and the fee value of income producing property ; that they rise and fall together; that the fluctuations in the one value are responsive to the fluctuations in the other. If, then there be evidence exhibiting the course of the rental value of the property in question before and since the railroad, such evidence furnishes an infallible criterion by which to determine the course of the fee value. Now, just such evidence is in this case, and is supplied by the plaintiffs themselves. They produced a schedule of rents collected from the property before and since the railroad. The road was opened to the public June 5th, 1878, and here is plaintiffs’ statement of the rental value of his property f or the preceding year and for the present year:

1877 1890
No. 441 . . $1,500 $1,900
No. 443 1,500 2,200
No. 445 . . 1,500 2,200
No. 507 . . 1,800 2,000

—and thus it appears that all the Sixth avenue property has increased in rental value since the operation of the road from twelve to forty per cent. The inference is irresistible, that its fee value has increased in a corresponding ratio; and such, in my opinion, is the weight of the positive testimonv. .1 conclude, therefore, that as to their Sixth avenue property, plaintiffs have shown no injury, but the contrary rather.

2. As to the Eighth avenue property, the case is still more clear and conclusive. It appears by uncontradicted evidence that before the construction of the railroad in Eighth avenue, plaintiffs’ property there was agricultural land, wholly unimproved, and occupied only by shanties and stables.

The property was built and opened for occupancy in 1887. The rent received for the year 1887 was $1,956; for 1888, $4,512.50; for 1889, $4,890, and for the first four months of 1890, $1,900, or at the rate of $5,700 for the year. The testimony of the experts as to this property shows that -the lots upon which it was built were worth, at the time the elevated railroad was opened, and up to 1885, about $5,000 for the corner lot, and $3,000 for the inside lots, and that the corner lot is worth to-day about $17,500 to $20,000, and the inside lots are worth between $12,000 and $14,000. And the undisputed evidence demonstrates that this vast improvement and enormous increase in the value of plaintiffs’ property, are due chiefly, if not exclusively, to the operation of defendant’s railroad in immediate proximity to the property.

And yet I am asked to award plaintiffs thousands of dollars for injuries inflicted on this property by defendants’ railroad. To my mind, the claim is untenable and unjust.

Upon all the evidence, I am of opinion that plaintiffs have shown no injury entitling them to equitable relief, and it follows that the complaint must be dismissed (Mann v. Fairchild, 2 Keyes, 106; Heywood v. The City, 14 N. Y. 534-540; Bradley v. Aldrich, 40 Id. 504; Wheelock v. Lee, 74 Id. 495; Arnold v. Angell, 62 Id. 508).

Note of the Cases on the Elements of Damage Provable by Abutting Owners against an Elevated Railroad.

General Rules.—We think, says Presiding Justice Van Brunt (in Ode v. Manhattan Ry. Co. 56 Hun, 199), that the true construction of the opinion (in Drucker v. Manhattan Ry. Co. 106 N. Y. 157), authorizes an allowance for all the evils which result to the abutting owners from the maintenance and operation of this railroad. It is the aggregation of the discomforts suffered by the abutting owner for which compensation may be granted. Per Van Brunt, P. J. in Ode v. Manhattan Ry. Co. 56 Hun, 199.

On appeal from the commissioners appraisal and report in proceedings to acquire so much of an abutting owner’s interest or easement in the street as had been taken for the petitioners’ elevated railroad.—Held, erroneous for the commissioners to award compensation, not only for the depreciation of the owners’ abutting property by the erection of the structure and the passage of trains over it, but also for noise, smoke and vibration incident to the management of the trains, and the falling of ashes, dust and cinders, and the unsightly appearance of the structure itself. 1885, Matter of N. Y. Elevated R. R. Co. 36 Hun, 427.

In an action by a corporation for damages to premises owned and occupied by it, by the operation of an elevated railroad in the street, the fact that its premises are made disagreeable and uncomfortable to its agents and employes, is of itself no evidence of damage to the corporation, without additional evidence that the fact that the premises were made disagreeable to occupy caused the corporation additional expense, either in the management or carrying on of its business, or in some other way. 1886, Seventh Ward Natl. Bk. v. N. Y. Elevated R. R. Co. 53 Super. Ct. (J. & S.) 412.

But this rule does not apply to an individual occupant to whom the premises are rendered disagreeble and uncomfortable. N. Y. Super. Ct. Sp T. 1888, Kearney v. Metropolitan El. R. R. Co. 14 State Rep. 854.

Smoke, steam, dust, cinders, etc.] An elevated railway company is liable to an abutting owner for the operation of its trains, and the consequences flowing therefrom, in respect to the manufacture and distribution in the air of gas, smoke, steam, dust, cinders, ashes, and other unwholesome and deleterious substances from its locomotives and trains as they move to and fro over its tracks, where the evidence establishes the fact that they were destructive of the easements of light, air and access. Ct. of App, 1887, Lahr v. Metropolitan El. R. R. Co. 104 N. Y. 268.

Smoke and gases, ashes and cinders affect and impair the easement of air ; the structure itself and the passage of the cars lessen the easement of light; the dripping of oil and water, and the frequent columns interfere with convenience of access. These abridge the land owner’s easement and are proper elements of damage. 1887, Drucker v. Manhattan Ry. Co. 106 N. Y. 157.

The abutting owners are entitled to damages where the engines of the railroad company emit smoke, gas, steam and cinders which at times enter his doors and windows, thereby permanently diminishing the rental value of his property. The right of the owner to enjoy his property free from such annoyances is properly within the constitution of which he cannot be deprived without compensation. 1885, Super Ct. Abendroth v. Manhattan Ry. Co. 19 Abb. N. C. 247.

Smellsi] Evidence of smoke and stench from the engines compelling the closing of the windows is admissible, as, if the air was not to be obtained except accompanied by smell and smoke, and this was unbearable, this shows a deprivation of the air. N. Y. Com. Pl. 1885, Peyser v. Metropolitian El. Ry. Co. 13 Daly, 122. Evidence of the dampness in the street and consequent bad smells caused by the interception of sunlight and air by the structure is admissible. N. Y. Com. Pl. 1885, Peyser v. Metropolitian El. Ry. Co. 13 Daly, 122.

Loss of light.] Evidence of the darkening of plaintiff’s windows by the passage of trains and the emission of smoke and steam, is admissible ; it is not to be limited to the darkness caused by the railroad structure itself. N. Y. Com. Pl. 1885, Peyser v. Metropolitan Ry. Co. 13 Daly, 122.

The abutting owner is entitled not only to damages for loss of light from the structure itself, but also for the interruption of light occasioned by the running of trains, as the operation of the road as an entirety must be considered in the estimate of damage, and the running of trains is an essential part of its operation. 1886, Pond v. Metropolitan El. Ry. Co., 42 Hun, 567.

Noise and vihrationl\ Whether the annoyance of noise and vibration of the buildings are proper elements of damage is not decided because the question was not before the court; but the rule in the case of Lahr v. Metropolitan El. Ry. Co., (104 N. Y. 268), that the damages recoverable include whatever of injury or inconvenience resulted from the structure itself or are incidental to its use, it is declared “ opened the door to proof of every injury traceable to the road or its operation,” 1890. Drucker v. Manhattan Ry. Co. 106 N. Y. 157.

It seems that the noise made by the operation of the elevated railroads in front of an abutting owner’s premises is an element of damage for which he may recover. (Citing Drucker case above) Ode v. Manhattan Ry. Co., 56 Hun, 199.

A refusal to charge unqualifiedly to the effect that in estimating the damages the jury could consider neither the noise made by the running of trains, nor the gas and cinders emitted by the engines, nor the diminution of light and air, nor any other effects from the running of the trains,—held not error, as the testimony justified submission to the jury of the question whether the running of the locomotives and trains, as they were run, involved a use of the street other than the ordinary and legitimate use, 1885, Ireland v. Metropolitan Elevated R. R. Co., 52 Super. Ct. (J. & S). 450.

That the noise of the passing trains may be properly considered in awarding damages was held in the N. Y. Common Pleas (1889), in Kane v. Metropolitan El. Ry. Co., 25 State Rep. 587, overruling its former decision to the contrary in Peyser v. Metropolitan El. Ry. Co., 13 Daly, 122

Where one of the columns of the railway structure was placed in a vault in front of plaintiff’s house, and was not on or near his premises, but in the street,—held, that if the vault or walls were so constructed as to be affected by the vibration of the railroad structure, the company could not be held liable for that, N. Y. Com Pl. 1885, Peyser v. Metropolitan El. Ry. Co., 13 Daly, 122.

Where the jury has awarded the plaintiff nothing for deprivation of air, light and access, the withholding from them of the lesser elements of noise and privacy, although erroneous, cannot operate to the injury of the plaintiff. 1890, N. Y. Com. Pl. Moore v. N. Y. Elevated R. R. Co., 24 Abb. N. C. 74.

Loss of businessl\ In an action by the owners of a leasehold estate for years in premises occupied and used by them for a residence and for their business as physicians.—Held, that they could not recover for loss of business, because such damages were too remote. 1884, Taylor v. Metropolitan El. Ry. Co., 50 Super Ct. (J. & S). 311; s. c„ on further appeal, 55 Id. 555.

Evidence that since the building of the elevated road the trade and business in the street had fallen off, and the current of custom had largely lessened in volume and changed in character, resulting in diminishing rental values on the street, is competent; to measure and appraise the plaintiff’s individual loss, the nature and extent of the general injury must necessarily be considered, 1887. Drucker v. Manhattan Ry. Co., 106 N. Y. 157.

Hence evidence on the part of the railroad company showing an increase in business on the street in question since the construction of the road, and showing the course of trade and increase in the business value of plaintiff’s property, is admissible. 1890, N. Y. Com. Pl. Doyle v. Manhattan Ry. Co., 24 Abb. N. C. 72.

Where plaintiff has shown decrease in rentals since the erection of the railroad, which defendants have met with proof that there has been a change in the business character and value of the neighborhood owing to the establishment of a market in the vicinity which has drawn away trade formerly carried on there,—it is proper to leave it to the jury to say to which cause the decrease of rent is due. 1890, N. Y. Com. Pl. Moore v. N. Y. El. R. R. Co., 24 Abb. N. C. 74.

In such case, the change in the character of the neighborhood directly or indirectly attributable to the operation of the elevated railroad, cannot be taken into consideration as causing damages for which the plaintiff may recover. Ib.

Employee’s misconduct.'] Evidence is inadmissible of the misconduct of the employees of the company and other annoyances resulting from the operation of,the railway and not affecting the light, air or approach to the property bounded upon the street or relating to any disturbance or interference with it arising from the company’s acts or the construction of the railway and stations or their use or operation in the business of the railway itself. Sixth Ave. R. R. Co. v. Metropolitan, El. Ry. Co., 56 Hun, 182.

Possible improvemejits on vacant lot.] In an action for damages to the owner of a vacant lot by the construction and operation of an elevated railroad in the street in front of his premises, it is error to admit evidence as to the possible use to which the plaintiff’s property might be put by the erection of expensive buildings upon it, and of the amount of income which might be expected to be derived therefrom and of the plaintiff’s ability to use its property in that way, as such evidence is merely speculative. Sixth Ave. R. R. Co. v. Metropolitan Elevated Ry. Co., 56 Hun, 182.

Nor is evidence admissible in such an action of the manner and extent to which other property has been injured by the construction and operation of the railway where it is in no manner connected with the property owned by the plaintiff, though it is situated upon the same avenue. Ib.

The plaintiff can only recover in an action at law for the diminution of the rental or usable value of his property by reason of the construction, maintenance and operation of the railway; and as the basis for estimating the loss the lots must be taken as they were used during the time embraced in the action. If the lots are vacant, he cannot be permitted to prove and recover such damages as he might have sustained if he had erected dwelling-houses on the lots or made any other improvements thereon. The damages would then rest on mere conjecture and speculation. 1890, Tallman v. Metropolitan El. R. R. Co., 121 N. Y. 119.

Future stationi\ Although the railroad company has no station in front of plaintiff’s premises, yet the likelihood of one being erected there at some future time is a proper element to consider in ascertaining the future damages accompanying the use by the defendants of their railway. 1889, Supm. Ct. Stern v. Metropolitan El. R. R. Co., 4 N. Y. Supp. 323.  