
    George F. Hussner, Marie Hussner, Individually and as Guardian in Socage of Christopher F. Hussner and Frederick M. Hussner, Infants, Resp’ts, v. The Brooklyn City Railroad Company, App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 4, 1889.)
    
    1. Railroads—Damage to property by operation op road—Brooklyn City Railroad on Third avenue—Laws 1873, chap. 433—Powers CONFERRED BY ORDINANCE.
    The defendant was authorized by ordinance of the city of Brooklyn, pursuant to Laws of 1873, chapter 433, to operate its railroad by means of steam motors along Third avenue, between the city line on the south and Twenty-fourth street on the north, but the said ordinance did not authorize the defendant to use steam as a motive power in the moving of its oars on Twenty-fourth street.
    3. Same—Operating of cars on Twenty-fourth street by steam motors a nuisance.
    The defendant’s cars, so propelled, did not stop at Twenty-fourth street, but after passing into and along it for some distance, they were backed into Third avenue, on the north side of that street,and there, in front of the plaintiffs’ premises, were switched on to the southerly bound track, and, in so doing, much noise was made, the plaintiffs’ buildings shaken some, and cinders, smoke and dust discharged and cast upon their premises, and the ordinary use of the street there interrupted, to the annoyance óf the occupants. Held, that the use of steam as a motive power was without right on the part of defendant, and the manner in which it was used had the effect to molest the occupants in the use and enjoyment of the premises, and it was in the nature of a nuisance.
    Appeal from judgment of the general term of the supreme court in the second judicial department, affirming judgment entered on verdict against the defendant.
    
      Samuel D. Morris, for appl’ts; George W. Roderick, for resp’ts.
    
      
       Affirming 1 N. Y. State Rep., 773.
    
   Bradley, J.

The action was brought to recover damages to the plaintiff’s premises, alleged to have been suffered by the unlawful running and operating of the defendant’s cars upon the street in front of such premises, which are situated on the northwesterly corner of Third avenue and Twenty-fourth street, in the city of Brooklyn. Prior to 1877, the defendant operated a horse car railroad on the avenue, and then pursuant to an ordinance, authorized by Laws of 1873, chap., 432, steam motors were applied by the defendant to run its cars between the Cityline on the south, and Twenty-fourth street on the north. For the purposes of this review, it must be assumed that the defendant had the right to use such motive power to run its cars upon Third avenue between those points, and that the plaintiffs had no right to complain of the exercise of such right. The subject of their complaint is, that the defendant’s cars, so propelled, did not stop at Twenty-fourth street, but after passing into and along it for some distance, they were backed into Third avenue on the north side of that street, and there, in front of the plaintiff’s premises, were switched onto the southerly bound track, and in so doing, as evidence on the part of the plaintiffs tends to prove, that much noise was made, the plaintiff’s buildings shaken some, and cinders, smoke and dust discharged and cast upon their premises, and the ordinary use of the street there interrupted to the annoyance of the occupants, and, as a consequence, the value of the use of the property was depreciated. It is said this was continued, with only a few minutes intermission between trains, daily, from early in the morning until midnight. The plaintiff’s building occupies fifty feet, fronting on the avenue, and consists of three stores on the ground floor, and a dwelling over the central portion of them. The plaintiffs or abutting owners, had such an easement in the street as to enable them to insist as against the defendant, that it should be devoted to such use only as was consistent with its purposes as a public street. Story v. N. Y. Elevated R. R. Co., 90 N. Y., 122 ; Lahr v. Metropolitan Elevated R. R. Co., 104 N. Y. 268; 4 N. Y. State Rep., 340.

It will be assumed that the defendant had acquired the right to operate a horse railroad on the avenue in front of the plaintiff’s place. The right to do so, given pursuant to the statute, is not deemed inconsistent with street uses. People v. Kerr, 27 N. Y., 188; Mahady v. The Bushwick R. R. Co., 91 id., 148. The use of steam as a motive power in the movement of its cars at the place in question, was without right on the part of the defendant, and so far as it, and the manner in which it was used there in the operation of the cars, had the effect to molest the occupants in the use and enjoyment of the premises, as indicated by the evidence on the part of the plaintiffs, it was in the nature of a nuisance. Whether any substantial injury resulted to the premises and their use, from such causes, was a question of fact for the jury, upon the conflicting evidence in that respect. The inquiry to which the proof was directed had relation to the effect upon the rental -value of the premises, and there was evidence tending to show that the consequence of such cause was a depreciation of such value to the extent fully equal to the amount recovered. The weight of the evidence on that subject is not here for consideration. It may be assumed, in view of the instruction to the jury, that recovery was had for such damages, so sustained, up to the time of the trial, although the plaintiffs were entitled to recover such only as had accrued at the time of the commencement of the action. Uline v. N. Y. C. and H. R. R. R. Co., 101 N. Y„ 98; Pond v. Metropolitan E. R. R. Co., 113 id., 186; 20 N. Y. State Rep., 419. But as that question was not raised at the trial, it is not here for consideration. If, however, the fact is as assumed in that respect, the recovery may be effectual as a bar to any future claim for damages, sustained there by the plaintiff, prior to the time of the trial. McGovern v. N. Y. C. and H. R. R. R. Co., 67 N. Y., 417.

The court was requested to charge the jury that the .plaintiffs had no title to the fee in Third avenue, and that the defendant had not trespassed upon the plaintiffs’ property in operating its cars in front of their property. The court declined to do so, other than as before charged, and the defendant’s counsel excepted.

The plaintiffs, in their complaint, set forth the description of the premises in the same manner as it was represented by the deeds put in evidence, and allege that the ancestor of the plaintiffs, and from whom they derived their title by descent, was seized and possessed of the premises so described, “ subject only to the public easement of a common street or highway in that part thereof called Third avenue.”

And they also alleged that since the plaintiffs became such owners, the defendant had unlawfully operated its cars, propelled by steam upon that portion of their premises, within and bounded by the center line of the avenue. It is by reason of this element of trespass, alleged in the complaint, that the defendant’s counsel contends the court should have charged as requested. Assuming, as we do, that such request was supported by the fact embraced in it, in respect to the boundary of the plaintiffs’ premises, the defendant was entitled to the charge as requested, unless the matter was obviated by what had occurred at the trial. The defendant’s counsel had moved the court to require the plaintiffs to elect whether they would claim to recover for trespass or nuisance, and the court remarked that if the plaintiffs would waive their right to recover nominal damages for a trespass, and ask to recover only substantial damages for injury to the premises, the motion would be denied. Thereupon the plaintiffs’ counsel waived any right they had to nominal damages for trespass. And in the charge to the jury, the court so treated the case, and made the right of recovery dependent upon the finding of the jury, that there had been a substantial injury to the use of the plaintiffs’ premises by the operation of the cars with steam, in front of the premises, and charged them that the question whether they were bounded by the center of the avenue had no importance. It is therefore clear that tho question of title to land within the street was, by the waiver of the plaintiffs’ counsel and the charge of the court, out of the case as it went to the jury, and that the defendant could not be, and was not, in any manner prejudiced by the refusal of the court to charge as so requested, or by the charge as made in that respect.

We have examined all the exceptions appearing in the record to have been taken by the defendant, and fail to see in them any support for the charge of error in the rulings of the court.

The judgment should be affirmed.

All concur, except Brown, J., not sitting.  