
    Valentine E. N. Cook, Resp't, v. The New York Elevated Railroad Co. et al., App'lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 10, 1893.)
    
    1. Railroad—Elevated—Valije of easements.
    In an action against an elevated railroad, it is error for the referee to refuse to find as a fact that the easements of light, air and access pertaining to plaintiff’s land, taken for the use of the railroad, have only a nominal value in themselves, aside from any damage to said land.
    
      ■2. Same—Proof of damage.
    Where plaintiff purchased several years after the railroad was operated, and it appears that prior to its construction the values of property fluctuated greatly owing to other causes, the sales of the particular piece of property afford no basis for estimating whether the price paid by plaintiff was less than the market value of the property before the railroad was built.
    3. Same.
    In such case, where there is no proof of the rentals received before plaintiff acquired the property, it is impossible to determine that there has been a loss of rental. Proof of the course of rentals of neighboring property is no proof that plaintiff suffered in the same degree, or at all.
    Appeal from a judgment of this court entered upon the report of a referee. r
    The action was to restrain the operation of a branch of the elevated railroad running in front of plaintiff’s premises, No. 889 East Thirty-fourth street, between Second and Third avenues in the city of New York, and for damages. The judgment granted an injunction to become operative in ninety days unless defendants paid the plaintiffs $1,500, at which sum the damage to the fee value of the premises was fixed. Damages for loss of rentals from September 28, 1888, to February, 1892, amounting to $676, together with interest, were also allowed.
    
      J. Aspinwall Hodge, Jr., for, resp't; R. L. Maynard, for app'lt.
   Daly, Ch. J.

The judgment will have to be reversed for error in the refusal of the referee to find, as fact, at the defendants’ request, that the easements of light, air and access, the only property in the street pertaining to the plaintiff’s land taken for the use ■of the railroad, have only a nominal value in themselves, aside from any damage to the said land. Bookman v. N. Y. El. R. R. Co., 50 St. Rep., 703; Sutro v. Met. El. Ry. Co., id., 701.

It is contended by respondent’s counsel that the refusal to find as requested would be material only in case that the evidence warranted a finding of benefits to the remaining property, which should be allowed as an offset against consequential damages, and the language of the opinion in the Bookman case above cited is referred to in support of this contention. The opinion in the élitro case does not so limit the effect of the refusal to find ; and in the case before us it cannot be safely affirmed that the referee did not, in estimating the damage to the plaintiff’s premises by the operation of the railroad, allow for more than nominal value with respect to the easements taken, apart from the abutting land. His refusal to find as requested without any qualification as to the materiality of the finding, leaves us no option but to order a new trial.

But upon the evidence in the case it would also seem that there was no sufficient proof of damage to the fee value of plaintiff’s premises nor a diminution of rental value traceable directly to the construction, maintenance or operation of the defendants’ railroad in East Thirty-fourth street, between Third avenue and the East river. The plaintiff bought the house and lot in September, 1888, nine years after the construction of the elevated railroad was commenced, and eight years after it went fully into operation. He purchased from one Rimoldi for $11,000. Rimoldi had bought the premises about two years before, October, 1886, from Mrs. Moore for $10,000. Mrs. Moore acquired the property in the year 1867, for $10,000, from Mrs. Bull. According to the testimony of plaintiff’s experts values fluctuated greatly between 1867 and 1879, the date of the commencement of the elevated road, reaching their highest point in 1873, and then, on account of the panic in that year, falling steadily, down to 1877, when the lowest point, was reached. The sales of this particular piece of property, therefore, afford no basis for ascertaining whether the price paid by the plaintiff in 1888, $11,000, or that paid by Rimoldi in 1886, $10,000, was less than the market value of the property before the railroad was built; an important fact in determining whether the railroad injuriously affected its fee value.

We should find, however, important evidence as to the effect, of the railroad upon fee values as well as rental values in a comparison of the rents actually received from the abutting property before and after the construction of the road. But with respect to plaintiff’s property we are met with an absolute want of all evidence as to the actual rents earned by it before the plaintiff acquired it in 1888. From the time he purchased he has received an average of over $1,030 per annum (the referee finds a little less); but whether that is more or less than was ever before received from the property no witness can. tell. The house was let for many years to tenants, but no records of the rents collected have been preserved. In the absence of such evidence it is not possible to affirm with reasonable certainty that the present owner sustains any loss of rentals, and thus an important fact is wanting in determining whether the property brings less than it would bring if the railroad were not there.

Proof of the course of rentals of neighboring property was received upon the question at issue, but without a knowledge of the course of rentals of plaintiff’s house there is no proof that the plaintiff suffers in the same degree as his neighbors, or in any degree, from the railroad. The plaintiff’s property might yield now as much or more than it brought in the highest period of values in 1875, as well as at the lowest point in 1878, just before the railroad was constructed. Unless it can be shown that it does not, the proof of plaintiff’s loss and damage is wanting. We held in a late case, Brush v. Manhattan R. Co., 44 St. Rep., 111, where there was evidence that plaintiffs received as much rental after the railroad was built and operated as before, that he had proved no damage-; and we also held that under such circumstances evidence of diminution of rents of neighboring property did not establish a loss of rental value in his own, but only showed that he had not experienced the losses sustained by other owners on the street.

The course of depreciation- in neighboring property establishes nothing in plaintiff’s favor unless his rents have actually depreciated. All property in Thirty-fourth street has not suffered the same percentage of depreciation. The plaintiff’s neighbors may have lost and he may have escaped loss. The opinion of experts that values are less than in 1872 or 1878 will not help the plaintiff, who does not show that the rents of his property are less, than in those years. For the reason that there is no preponderance of proof in plaintiff’s favor on the issue of fact, as well as for the error first referred to, the judgment must be reversed.

Judgment reversed and new trial ordered, with costs to abide the event

Bischoff and Pryor, JJ., concur.  