
    William A. Hynes, Respondent, v. The Manhattan Railway Company and The New York Elevated Railroad Company, Appellants.
    
      Eminent domain —fee damages in an abutter's action against an elevated railroad, — they are determined as of the time of the trial.
    
    In fixing the fee damages in an abutter’s action against an elevated railroad, the value of the property is to be .ascertained by the conditions existing at the time of the trial, and the court must consider whether the operation of the elevated road is a present benefit, independent of the conditions which existed in that part of the city in which the plaintiff’s property is located before the construction of the- elevated road, and irrespective of benefits resulting from the past operation of the road. ■ •
    Appeal by the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the -23d day of June, 1899, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Alfred A. Wheat, for the appellants.
    
      John A. Weekes, Jr., for the respondent.
   Patterson, J.:

This is an ordinary action against an elevated railway company for an injunction and for damages to rental value. The premises are No. 1938 Third avenue, on the southwest corner of One Hundred and Seventh street, with a frontage of twenty feet and a depth of seventy-three feet. The plaintiff became the owner of the premises in 1885. The action was commenced in 1890, and the court allowed $R500 for damage to the fee value and $2,081 rental damage, being at the rate of $150 a year for fourteen years. There are three • tracks in front of the premises,-two on either side of Third avenue, upon which trains run, with the usual effects of the operation of the road upon abutting property; but, in addition to that, there is a third track between the others which is- used as a place for the storage of cars, and those cars so stored on the middle track are there washed and dusted and mats are shaken to the great annoyance and discomfort of occupants of property. This enhances very ¡much the ordinary injurious effects of an elevated railway structure upon abutting properties. The only question seriously argued seems to be the reasonableness of the awards. Taking the whole evidence into consideration, I think they were moderate. Some contention is made that the evidence shows that the premises have been and now .are benefited by the construction and operation of the defendants’ road and that the proof shows certain facts which would bring the case within Bookman v. Elevated Railroad (147 N. Y. 306) and Malcolm v. Elevated Railroad (Id. 313), and it is argued that the railroad company, coming into substantially vacant and unimproved territory, caused values greatly to increase and that the plaintiff’s property participated in that benefit. The evidence in this record does not establish the defendants’ contention. The defendants’ railroad was put into operation in front of the plaintiff’s' premises in 1878. The city of New York was built up to about Eighty-sixth street in 1873. What was then known as Harlem was built up in a southerly direction to about One Hundred' and Tenth street. Ever - since 1873, except during what are termed panic periods, there has-been an actual and continuous growth of the city which cannot be ascribed, especially on Third avenue between Eighty-sixth street and One Hundred and Tenth streets,-to the coming of the elevated road. But the question here is not as to the benefit to plaintiff’s property which may have been in excess of the injuries to it at the time the road was built and put in operation. .The trespass being a continuing one, the value is to be ascertained, in fixing the fee damagé, by the conditions existing at the present time; and as we have heretofore .held, the court must consider whether the operation of the •defendants’ road is a present benefit, notwithstanding the conditions which existed in that part of the city, in which the plaintiff’s premises are located, before the elevated road was constructed and irrespective of benefits the result of past operation of .that road. (Otten v. Manhattan R. Co., 2 App. Div. 396.) By that test the judgment appealed from is correct and should be affirmed, with costs.

Van Brunt, P. J.. O’Brien, Ingraham and Hatch, JJ., concurred. '

Judgment affirmed, with costs.  