
    John Dunbar Wright et al., Resp'ts, v. New York Elevated Railroad Company et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1894.)
    
    1. Railboads— Elevated—Damages.
    A finding that the rental value of abutting premises was diminished by the operation of an elevated railroad in the street, was held not to be sustained by the evidence.
    2. Same—Judgment.
    Where some of the plaintiffs are infants and no provision has been made for the conveyance of their interests, a judgment, enjoining the operation of the road unless the company pays a certain sum on receiving a conveyance of plaintiffs' easements, is inequitable.
    Appeal from a judgment awarding an amount for trespass on the street easements appurtenant to plaintiffs’ premises, and restraining the operation of the road unless the company pays a designated sum for conveyance of easements taken and impaired.
    Davies, Short & Townsend, for app’lts; George Zábriskie, for resp’t.
   Follett, J.

The plaintiffs are simply abutting owners, having no title to, or interest in, the bed of the street, nor any private rights therein, except such as are incident to a lot abutting on a public street. The defendants insist that there is no evidence tending to sustain the finding (thirteenth) that the trespasses committed'by the defendant's before the trial damaged the plaintiffs to the amount of $300 per year, and they also insist that, if there is any evidence tending to sustain this finding, it is altogether against the weight of evidence. The measure or rule for ascertaining the amount which abutting owners are entitled to recover for trespasses committed by the elevated roads on street easements has been held in many cases to be the diminished rental value of the abutting premises caused by the trespasses. The'amount of rent received before the trespasses were committed, and while they were being committed, is competent and persuasive evidence upon the issue of the amount of damages sustained, but the difference between these sums is not conclusive proof of the extent of the injury sustained. It may be that, during the time when the acts complained of were committed, the premises were not rented, or they may have been let for a nominal sum, or for a'sum much more, or much less, than their actual rental value. The real issue is not how much less the abutting owner has actually received for the rent of the premises, but it is, how much has the rental value of the property been diminished by the trespasses? In determining this question the benefits, if any, to the premises, occasioned by the construction and operation of the road, must be taken into account. In the case at bar the plaintiffs’ premises have been continually leased to the Hale Chair Company for 25 or SO years before the trial of this action, and were occupied by that corporation as a chair store. During the 15 years immediately preceding the trial—1878 to 189S—the corporation (the lessee) paid an-annual rental of $1,200 to $1,400. Hrom 1878 to 1881 the annual rental was $1,200. • The rent for "1882 is not stated, except it appears that it was not less than $1,200, nor more than $1,400. Since 1882 the rent has been $1,400 per year. So it appears that the plaintiffs have not received a less rent since the road was put in operation than before. The learned counsel for the defendants urges that this is proof that the plaintiffs were not injured by the trespasses complained of, and that at most they are entitled to but nominal damages. We do not think that this conclusion necessarily follows from the evidence. It may be that, had the road not been built and operated-in front of the plaintiffs’ premises, their rental value would have been more than $1,400 per year. One of the occupants of the premises testified that they were annoyed by the dust, cinders and smoke that came from the road, and that the light was interrupted by the structure and by the moving trains; but aside from this evidence we find none in the record which shows, or tends to show, how much the real rental value of these premises was diminished between January 9, 1885, and June 6, 1893, by the trespasses of the defendants. No witness testified that the rental value of these premises was diminished by the operation of the road, and we think the thirteenth finding is contrary to the weight of the evidence.

The judgment provides that an injunction restraining the operation of the road shall issue within sixty days after the entry of the judgment, unless the defendants pay $6,000 on receiving a conveyance from the plaintiffs of the easements. It is true that the defendants are not bound to pay the sum fixed, but may acquire the property by condemnation; yet this provision should be formulated and founded upon equitable principles. American Bank Note Co. v. New York El. R. Co., 129 N. Y. 252; 41 St. Rep. 531; Blumenthal v. N. Y. El. Railroad Co., 60 N. Y. Super. Ct. 95; 42 St. Rep. 683. One-fourth of the title is held by infants, which cannot be conveyed except by a special guardian, duly authorized by the court in a special proceeding instituted for that purpose. This provision, in its -present form, is inequitable. It might have been provided that an injunction issue unless the defendants pay the sum fixed on being tendered a valid conveyance of the title within the time mentioned, dr that an injunction issue unless the defendants acquired the title by condemnation within the time mentioned.

The point is urged that the plaintiffs are not entitled to recover more than three-fourths of the damages which accrued prior to May 6, 1889,—the date of the death of Mrs. Coolidge; but it was not taken on the trial, and need not be considered, as it will undoubtedly be obviated on the retrial.

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

All concur.  