
    Edith Kane, Pl’ff and Resp’t, v. The Metropolitan Elevated Railway Company and The New York Elevated Railroad Company, Df'ts and App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed June 3, 1889.)
    
    1. Elevated railroad—Damages—Elements oe noise mat be considered IN AWARDING.
    In an action for damages for loss of rental value of premises because of the construction and operation of the elevated railroad on the street in front of plaintiff’s premises, the trial judge charged the jury that they might consider the element of noise in awarding damages; and refused to charge that the noise of the passing trains was not an element of damage. Held, not error; that although it was formerly held that in awarding damages in such cases the jury could not consider any injury to easements beyond those of light, air and access, yet now “the door is open to proof of every injury traceable to the road and its operation.”
    2. Same—Tripartite and merger agreements between defendants— Effect of—Action against purchaser.
    The agreements known as “The Tripartite” and “Merger” agreements between “The Metropolitan Railway Company,” “The Mew York Elevated Railroad Company” and “ The Manhattan Railway Company," were executory in their character, and gave the Metropolitan Railway Company no interest in that part of the railway tracks constructed on Pearl street, between Chatham street and Beaver street, by the Mew York Elevated Company until they complied with the agreement, and although by the “Merger” agreement, the Manhattan Company acquired all or nearly all of the stock of the other two companies, yet the identity of the companies is not lost by the agreement or their legal status changed.
    
      3. Same — Secondary evidence — When admissible — Lease — Contents of.
    A copy of a prior lease of the premises in question, was permitted to he given in evidence on the testimony of a witness that he had unsuccessfully endeavored to find the lease among his papers; and who afterwards testified that he did not have it and said “ I destroy these papers to get rid of them.” Held, not error, as the controversy was not between the parties to the lease; and even if it had been, the loss of the instrument was sufficiently shown to warrant the admission of secondary evidence of its contract.
    Appeal from a judgment of the trial term of this court for the sum of $6,677.41, entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial upon the judge’s minutes.
    The action was brought by the plaintiff as owner of the building, known as No. 136 Pearl street, for damages to the rental value thereof alleged to have been inflicted by the construction and operation of the elevated railroad on Pearl street.
    The plaintiff traced her alleged easement in the street to the payment of an assessment for the paving of Pearl street in front of said premises, but the defendants showed that the fee of the street in question, had been in the owners of the land upon the opposite side of the street ever since the street had been there, prior to 1664, having been originally granted by the Dutch government to said owners. Pearl street in front of these premises was an open street in the time of the Dutch occupation prior tó 1664. At that time the place where the said premises now are, was beneath the water of the East river. Pearl street originally ran along the shore of the East river. This fact is recited in the Dutch grants introduced in evidence by the defendants.
    The plaintiff’s title is traced from a water grant from the city made in 1768.
    
      Davies & Rapallo (Edward 8. Rapallo and 8amuel Blythe Rogers, of counsel), for app’lts; John A. Weeks, for resp’t.
   Allen, J.

The plaintiff is the owner of the premises known as 136 Pearl street, in the city of New York, and brought this action for damages to the rental value of her property, caused by the construction and operation of the Elevated Railroad in front of her premises. The answer of The Metropolitan Elevated Railway Company, expressly denies that it ever erected, owned, maintained or operated an elevated railway in and through Pearl street. The answer of the defendant, The New York Elevated Railroad Company, admits the construction and ownership of the elevated structure in said street. At the close of the plaintiff’s case, the counsel for the defendant moved on behalf of each of the defendants to dismiss the complaint, on the ground that it nowhere appeared that either of the defendants had anything to do with the construction, maintenance or operation of the elevated railroad in Pearl street. The motion was denied, and counsel for defendants noted a separate exception on behalf of each defendant to the denial of the motion. This motion was renewed at the close of the whole case, and the defendants duly noted a separate exception on behalf of each defendant, to the denial of the motion upon the grounds stated. The appellant now claims that the judgment should be reversed as to the defendant, the Metropolitan Elevated Railway Company.

As to this branch of the case, the appellant is correct, for the complaint should have been dismissed as to the defendant, The Metropolitan Elevated Railway Company, on the ground that it was not shown by the proof in the case that the said defendant has at any time constructed, owned, maintained or operated an elevated railroad in Pearl street.

The evidence offered in support of her case against The Metropolitan Railway Company consists of two agreements between the New York and the Metropolitan Company, and the agreement between the New York, Metropolitan and Manhattan Company, known as the tripartite agreement. The two agreements first mentioned are executory in their character, the first providing that The New York Elevated Railway Company shall have the right to construct lines on the route or routes between South Ferry and Chatham Square, and that The Metropolitan Railway Company, if it shall determine to use the part so constructed, shall have the right to do so upon payment to The New York Elevated Railroad Company of one-half the cost, charges, the expenses incurred in this construction; the second provided that the Metropolitan Elevated Company should not be required to pay for its half of the structure, from Beaver street to Chatham Square, until it shall require the use of the same, and then it shall pay one-half of the full cost thereof, as defined in the previous arrangement.

These arrangements gave the Metropolitan Elevated Railway Company no interest in this part of the railway until the terms of the agreement were complied with by it, which appears never to have been the case. By the tripartite agreement, it simply appears that the New York Elevated Railroad Company had constructed the road at its own expense, and the Metropolitan Company were contemplating the purchase of one-half of it, which appears never to have been consummated. By the Merger agreement the Manhattan Company acquired all, or very nearly all, of the stock of the other two companies. But the identity of the two companies is not lost by this agreement, or their legal status changed. This proof is entirely insufficient for the purpose of showing any ownership or interest by the Metropolitan Elevated Railway Company in the elevated railway in Pearl street.

The judgment should, therefore, be reversed as to the said defendant, the Metropolitan Railway Company, with costs.

We find no reason for disturbing the judgment as to the other defendant, the Mew York Elevated Railroad Company. Yearly all the questions raised by the exceptions have already, in other cases, been discussed, and decided in this and other courts adversely to the defendant.

The judge, at the trial, charged that the jury might consider the element of noise in awarding damages, and refused to charge that the noise of the passing of the trains was not an element of damage, to which the defendant’s counsel excepted, and our attention was called to the case of Peyser v. The Metropolitan Elevated Railway Company (13 Daly, 122), where it was held that there could be no recovery on account of noise caused by passing trains. This case was before the general term of this court in November, 1884, and before the decision of the Lahr Case (104 N. Y., 268; 4 N. Y. State Rep., 340), in the court of appeals, and in applying the Story Case (90 N. Y., 122) the court did not consider it could go beyond the injury to easements of light, air and access, in awarding damages. Since the decision of the Lahr Case, in 1886, we have affirmed judgments at the general term in which this same point has been raised, assuming that the decision of the majority of the court of appeals, in the Lahr Case, “ opens the door to proof of every injury traceable to the road or its operation. ”

There does not appear to be any merit in the exception at folio 168, which has reference to the testimony of Birchett, in regard to one of the former leases of the premises’ in question. The witness had already testified that he had endeavored to find the lease among his papers, but could not find any of the old leases prior to May, 1888, and subsequently that he did not have it, and said: “I destroy these papers to get rid of them.” The controversy was not between the parties to the lease, but even if it had been, we think that the. loss of the instrument was sufficiently proved to warrant the admission of secondary evidence of its contents.

The judgment as against the defendant, the New York Elevated Railroad Company, is affirmed, with costs. The judgment as against the defendant, the Metropolitan Elevated Railway Company, is reversed, with costs.

Bookstaver, J., concurs.  