
    Caroline A. McCready et al., Resp’ts, v. The Manhattan Elevated Railway Company et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March, 1894.)
    
    1. Damages—Elevated bailway.
    
      A. decrease in rents, which has occurred long after the road was built and in operation, cannot be attributed to it.
    2. Same.
    A cause, existing for ten or twelve years, cannot, without some change in its conditions, evolve additional damages.
    Appeal from judgment entered after trial at special term.
    
      Davies, Short & Townsend (.Arthur G. Townsend, of counsel) for app’lts; W. P. Prentice, for resp’ts.
   Van Brunt, P. J.

This action was brought to recover past damages and fee damage caused by the appropriation of the easements appurtenant to the premises on the northwest corner of' Ninth avenue and Fifty-third street, by the defendants, for their elevated railway.

The questions presented are as to the excessive amount of damage allowed; and as to the error of the court in its finding. The court found that the maintenance, use and operation by the defendants of their elevated railway structure and the additions thereto, including the switch tower and track-house and planking between the tracks for the convenience of the defendant’s employees, and the third and extra set of ties over the avenue in front of plaintiff’s premises, and the passage of numerous and frequent trains over such elevated structure constituted an inconsistent and excessive street use and trespass upon the plaintiffs’ easements and rights of property for which the plaintiffs are entitled to damage.

In making this finding it seems to us that the learned court erred. The existence of all the elements recited in the finding does not absolutely entitle the plaintiff in cases of this description to damages. Other elements must be proved, as has been established by repeated decisions of the court of last resort, and that notwithstanding the existence of all the elements mentioned, a party may not be entitled to damage. In this statement the question of benefits seems to have been entirely lost sight of. It is true that in other parts of the conclusion of law the court found that the plaintiffs are not entitled to injunctive relief, unless they have proved that the interference with the easements appurtenant to the premises in suit resulted in substantial pecuniary damage to the same, and that the actual market value of the premises would be greater if the defendant’s railroad in front thereof had not been built; and that the plaintiffs are not entitled to recover damages in this action except to the extent, if any, by which the disadvantages of the defendant’s road have exceeded the advantages thereof to said premises. But in view of the award which has been made in this case, it would seem that the first proposition. found was the one upon which the court below acted. Prior to the year 1888 the premises had virtually been vacant, being used as a coal yard. There is no clainrthat their rental value for such purpose was affected by the presence of the elevated railroad. The apartment house and stores which were upon the premises .at the time of the trial appear to have béen built about 1888, and the premises were bought by the plaintiff in 1889, eleven or twelve years after the elevated railroad had been in operation, and the tracks in substantially the same condition as they were at the time of the trial. And yet it has been found by the court that between 1889 and 1893 the rents of the premises in question have ■decreased in consequence of the maintenance and operation of the elevated railroad. We are unable to see how it is possible that to conditions existing in substantially the same state can be ascribed a fall in the rents of the premises in question. In fact, it would rather appear that the fall arose from the fact that too high rents were demanded by the plaintiffs on their purchase, and when they had to take less, it was claimed that the rents had fallen. And that such was the case is evidenced by the testimony of the witness, Hughes, who was in charge of the' premises in question.

As already intimated, we cannot understand how a decrease in rents, which has occurred long before the elevated railroad has been built and in operation, can be attributed to it. Such decrease must necessarily arise from other conditions not from those which have been in existence years before.

We think this is the difficulty which has pervaded the conclusion of the learned judge throughout the whole of this case, and that the fee damage has been largely augmented by , a supposed ■decrease in rents, arising from the operation of the elevated railroad, when such decrease must necessarily be ascribed to some ■other cause, for the reason that a cause existing for ten or twelve years, cannot, without some change in its conditions, evolve additional damages.

We think, therefore, that error was committed which has pervaded this judgment upon this subject, and which call for its reversal.

The judgment should be reversed and a new trial ordered, with ■costs to the appellants, to abide the event

O’Brien and Follett, JJ., concur.  