
    Nette v. New York, etc., R. Co.
    (New York Common Pleas—General Term,
    November, 1892.)
    In an action for an injunction, and damages caused by the maintenance and operation of defendant’s road, the evidence warranted a finding that plaintiff had been benefited thereby, but the referee omitted to find absence of benefit. Held, that defendant was entitled to a finding as a conclusion of law, that “in estimating the damages, if any herein, the benefits accruing to said premises and peculiar thereto, from the maintenance and operation of said railroad should be set off against any inconvenience resulting from said railway to said premises,” and a refusal to so find was error.
    Appeal from judgment in equity, awarding an injunction and damages against defendants.
    
      Robert Sewell and J. Aspinwall Hodge, Jr., for plaintiff (respondent).
    
      William R. Page, for defendants (appellants).
   Pryor, J.

In order to determine the measure of damages to which plaintiff might he entitled, if to any, defendants requested the learned referee to find, as a conclusion of law, that “ in estimating the damages, if any herein, the benefits accruing to said premises and peculiar thereto, from the maintenance and operation of said railroad, should be set off, against any inconvenience resulting from said railway to said premises.” The finding was refused, and the defendants duly excepted. Here was error. Messenger v. Manhattan R. Co., 129 N. Y. 502, 506.

That the request propounded the correct rule of law applicable to the case, is no longer open to question in the courts of this state (Bohm v. Metropolitan, etc., R. Co., 129 N. Y. 576; Newman v. Metropolitan, etc., R. Co., 118 id. 618); and the defendants were entitled, therefore, to its observance in the award of damages against them. The inevitable inference from the refusal of the referee to recognize the rule in the trial of the case, is that it was of no effect upon his decision, and that in the computation of damages he made no allowance for benefits to the property from the presence and operation of defendants’ railroad. Had he found that the railroad is of no benefit to plaintiff’s property; or were there no evidence in the case authorizing a finding of such benefit; the refusal might be sustained, because involving denial of a mere abstract proposition, and so of no detriment to defendants. But, since the referee omits to find the absence of such benefit, and since the evidence is ample to warrant a finding of the fact of such benefit (Purdy v. R. Co., 13 N. Y. Supp. 295, 299), it is impossible for us to say that the referee, in the award of damages against defendants, did not decline to credit them with the effect of benefits actually communicated to plaintiff’s property by the presence and operation of their railroad.

The amount of damages allowed to plaintiff, is, upon a negation of the rule propounded in the request, perfectly consistent ' with the hypothesis that, on a balance of loss and benefit to the property from the railroad, benefit preponderates over loss.

For apparent error in the record of probable prejudice to applicants, the judgment must be reversed.

It may not be without advantage to the parties on another trial of the action, if we express the doubt we entertain, whether the complaint should not have been dismissed for defect of proof of substantial injury to plaintiff’s property. Hoffman, v. R. R. Co., herewith decided.

Judgment reversed and a new trial ordered, costs to abide event.

Daly, Ch. J. and Pryor, J., concur.

Judgment reversed, new trial ordered, costs to abide event.  