
    Agnes Golden et al., Resp’ts, v. The Metropolitan Elevated Railway Co. et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    1. Railboad—Elevated—Damages to dentals and fee—Noise—When AN ELEMENT.
    In an action by an abutting owner against an elevated railroad company to recover damages for loss of rentals, and damages to the fee by reason, of the presence of the road, Reid, that noise is not an element of fee damage, but is of past damages.
    3. Same—Evidence as to bental value.
    Evidence that, as a general rule, rental values have diminished since the presence of the railroad is competent; but not proof of the special rent of a particular house on another street not in the immediate vicinity.
    Appeal from judgment in equity, awarding an injunction and damages.
    
      Abbett & Fuller (Henry Schmitt, of counsel), for resp’ts; Davies & Rapallo (Samuel Blythe Rogers, of counsel), for app’lts.
   Pryor, J.

With impressive earnestness the learned counsel for appellants contends that the award of damages, past and permanent, is for amounts quite beyond any sums which the proof authorizes. We do not so understand the evidence. In deference to the insistence of counsel we have examined the record with uncommon care, and the result is a persuasion that the conclusion of the trial court is not without adequate support. The special point, so confidently urged, that the fee damage is two thousand dollars in excess of the estimate of respondents’ own witness, however startling in the statement, ceases to be of force when we consider that the estimate makes no allowance for the subsequent expenditure in improvement of the building. Then, too, the evidence is ample to justify an inference that, but for the railroad, the value of the premises would have exhibited that general advance so conspicuous in properties along adjacent streets not affected by the railroad. At all events, these were circumstances for consideration by the learned trial judge; and we are not to substitute our judgment for his in deducing conclusions from evidence of so equivocal or ambiguous an import as to be susceptible of diverse constructions.

Since the proscription by the court of last resort of all direct testimony to the effect of the railroad on the value of property, the fact is to be ascertained only by evidence, at best, of an indeterminate and inconclusive character; and the case must be peculiar indeed in which the judicial mind can repose upon the assurance of an absolute conviction. We may doubt the correctness of the decision below ; we may even incline to a contrary conclusion j and still we shall not be authorized to reverse the judgment. Betjeman v. R. R. Co., ante, 721.

But the judgment is challenged for error in law; and we are to determine whether it be so invalidated.

It is an unquestionable proposition that noise is not an element of fee damage; and, in effect, the trial judge so rules in his conclusions of law. But appellants say that nevertheless allowance is made for noise in the award of such damage. We do not so read the record. True, noise is found as- a fact, and rightly ; because it is an element of past damages, Kane v.E. R. R. Co., 125 N. Y., 164; 34 St. Rep., 876; Messenger v E. R. R. Co., 129 N. Y., 503 ; 42 St. Rep., 96 ; Moore v. E. R. R. Co., 130 N. Y., 523 ; 42 St. Rep., 588 ; Mitchell v. E. R. R. Co., 132 N. Y., 553 ; 43 St. Rep., 476, but that it entered into the estimate of fee damage is not apparent At most, the argument of appellant warrants a conjecture that possibly evidence legitimately in the case may have been applied to an improper purpose ; but this is not a sufficient demonstration of error. Mitchell v. E. R. R. Co., 132 N. Y., 552 ; 43 St. Rep., 476 ; Messenger v. E. R. R. Co., 129 N.Y., 503 ; 42 St. Rep., 96.

Appellants offered proof of the specific rent, in 1876, of particular houses in Houston street, but on respondents’ objection the evidence was excluded. The respondents had previously tendered evidence, which on appellants’ motion was rejected, of the rent of a house in the vicinity and on the same street with the premises in question. Adhering to the rule which appellants themselves had procured to be established for the trial of the case, the court denied their offer, but received evidence of the general course of rentals in Houston street, that isr whether they were higher or lower. The witness testified that the rents were lower since the construction of the railroad. The court was not only consistent but was correct in its ruling. That, as a general fact, rental values have diminished since the presence of the railroad, is competent evidence, Drucker v. E. R. R. Co., 106 N. Y., 157 ; 8 St. Rep., 599 ; not so proof of the special rent of a particular house on another street, “not,” as the court observed, “ in the immediate vicinity.” Doyle v. E. R. R. Co., 128 N. Y., 488; 40 St. Rep., 474. Were the specific objection to the question untenable, which, however, it is not, N. Y. E. R. R. Co. v. Fifth Nat. Bank, 135 U. S., 432, still the ruling should be sustained, because the evidence Was essentially and irreparably incompetent. Tooley v. Bacon, 70 N. Y., 34, 37.

In any event the error, if such it be, was of no prejudice to appellants ; for the witness testified that “ the rents are less by from $50 to $100 on each house ” than before the railroad, thus showing not only the fact, but also the ratio of diminution.

The pendency of a common law action for past damage was no bar to the recovery of such damage in the present suit, and for two decisive reasons, first, the defense was not pleaded, and secondly, the plaintiff tendered a discontinuance.

Observing no error in the record, we must affirm the judgment.

Judgment affirmed, with costs.

Bookstaver, J., concurs.  