
    Daniel S. McElroy and Others, Respondents, v. The Manhattan Railway Company and The New York Elevated Railroad Company, Appellants.
    
      Elevated roads—rental damages not awa/rded where loss of rent is due. to dilapidation of the premises — a more rapid increase in value in adjoining than in the abutting property justifies fee damages.
    
    In an action by an owner of premises which abut upon an elevated railroad, a judgment for rental damages cannot be sustained where it appears that the buildings are old and dilapidated, and that the failure to keep the premises constantly occupied by tenants may as justly be attributed to the increasing undesirable character of the buildings as to the maintenance and operation of the elevated road.
    
      The fact that adjoining property had increased in value with greater rapidity than the abutting property in question was considered to justify a conclusion that the construction and operation of the elevated road was a detriment to the abutting property, and to afford a foundation for the recovery of fee damages.
    Appeal by the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of April, 1895, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Alfred A. Wheat and Júlien T. Da/vies, for the appellants.
    
      Henry A. Forster and Stanley W. Dexter, for the respondents.
   Van Brunt, P. J.:

This action was brought to recover fee damage and rental damage arising from the construction and operation of the elevated railroad, on Ninth avenue, in front of the premises Nos. 440,442,444, 446 and 448 Ninth avenue. Damages were also claimed for the premises No. 378 West Thirty-fifth street, but they were waived upon the trial.

The premises in question are situated on the southeast corner of Ninth avenue and Thirty-fifth street, having a frontage of ninety-eight feet on Ninth avenue, the total depth of the plot being eighty feet. The court below awarded $5,000 as fee damages and $1,500 as rental damages. The buildings erected upon the lots in question are old and dilapidated and add nothing to the salable value of the land. A larger rental is received because of the existence of the buildings than would be received from the lots alone.

Upon an examination of the evidence in this case it is apparent that, from, the nature of the improvements upon the premises, it cannot be said that any rental damage has been sustained by the existence and operation of the defendants’ road. The usual evidence in regard to smoke and cinders and light was given, and also evidence showing a diminution in the rental value of the premises. This, however, may very well be accounted for by the fact of the increasing dilapidation of the premises, they thus becoming more undesirable and vacancies in them more numerous.

It appears that from 1874 to 1876 each of the plaintiffs’ houses was rented to a single tenant, and that losses of rent in consequence of the premises being vacant were not so numerous. Since that time the premises have been rented in floors to many small tenants, and it is claimed to be owing to the existence of the elevated road shortly after this time that this change was made. But it appears from the evidence in the case that, with respect to at least a part of the premises, a tenant was, in 1876, considerably in arrears in his rent, and that the landlord took it off the tenant’s hands and proceeded to rent it in floors, which change does not seem in any way to have been caused by the elevated road. • An examination of. the evidence upon this point fails to establish that any of the losses of rent alleged to have occurred were due to the maintenance and operation of the road.

In regard to the fee damage there is probably a better basis for the sustaining of the judgment. The road in front of the plaintiff’s premises has three tracks; there are three columns in front of the property and trains run quite frequently. It is claimed that at the present time trains do not run during the night. But it is impossible to conjecture how soon such an innovation may be made. The evidence shows that the property in question has undoubtedly improved considerably in value since the erection of the elevated railroad. But it also appears upon an examination of the evidence that adjoining property ■ has increased to a much greater extent. Property in this locality would naturally, with the increase of the city, become more valuable, and this would have been the case whether the elevated railroad had been erected or not, and when we find adjoining property increasing with greater rapidity, we think the conclusion of the court below, that the road was a detriment to the property in question, was well founded. The interference with its easements of light, air and access is undoubtedly an impediment to the improvement of the property, and renders the lots less valuable for that purpose. We do not think, however, that the evidence justified an award of $5,000 for injury to the land by reason of the taking of the easements in question, and the award should be reduced to $4,000.

The judgment should be modified by striking therefrom- ’ the rental damages and reducing the award for fee damage to $4,000, and as so modified affirmed, without costs.

Barrett, Rumsey, O’Brien and Ingraham, JJ., concurred.

Judgment modified by striking therefrom the rental damages and reducing the- award for fee damage to $4,000, and as so modified affirmed, without costs.  