
    Silvia Livingston, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts. Julia Livingston, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts. Morgan L. Livingston et al., Resp’ts, v. The Metropolitan Elevated Railway Co. et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed April 11, 1893.)
    
    1. Railboad — Elevated—Value of easements.
    The easements, if any, appurtenant to lots of land and taken for the use of an elevated railroad, aside from any damage to said lands from the taking, have in themselves only a nominal value, and a referee errs in refusing to so find.
    3. Same — Benefits.
    In estimating and fixing the sum which defendants may pay to obviate the injunction, the special benefits resulting from the defendants’ railroad to the premises in suit should be offset against any consequential damages resulting to the lot and building from the appropriation or interference with the easements in the plaintiffs’ street and appurtenant thereto by the maintenance and operation of defendants’ railroad in front thereof.
    Appeals from judgments of the New York superior court, general term, affirming judgments in favor of plaintiffs, entered upon report of referee.
    
      Brainard Tolles, for app’lts; George L. Rives, for resp’ts.
    
      
       Reversing 44 St. Rep., 830, 832.
    
   Per Curiam.

The referee in these cases was requested to find that the easements, if any, appurtenant to said lots of land and taken for the said railway uses, aside from any damage to said land from the taking, have in themselves only a nominal value. This finding he refused to make. He was also requested to find, as one of his conclusions of law, that in estimating and fixing the sum which the defendants may pay to obviate the injunction herein, the special benefits resulting from the defendants’ railroad to the premises in suit should be offset against, any consequential damages resulting to said lot and building from the appropriation or interference with the easements in West Broadway and appurtenant thereto by the maintenance and operation of defendants’ said railroad in front thereof. This rule of law he refused to lay down. In both these refusals the referee erred, and the plaintiffs’ counsel very properly admits the error. This court has several times so decided, the latest decisions having been given in the cases of Bookman, Sutro and Sperb, against these same defendants.

The counsel for the plaintiffs seeks to render the errors harmless by attempting to show that in fact there were no benefits resulting to, lots from the defendants’ railroad and therefore, however erroneous the referee’s ruling may have been, such error was abstract in its nature and caused no harm to defendants. Plaintiffs’ counsel maintains that the referee found as a fact that there were no benefits. This, we think, is a mistake. The referee found that by reason of the construction of the railroad opposite these lots the plaintiff in each case sustained damage to a certain amount in the loss of rentals and in a certain amount in the depreciation of the permanent value of the lots. But as he refused to hold that the easements in and of themselves were of no value, and refused to hold that the special benefits resulting to the land should be deducted or offset against the consequential damages thereto, his finding as to the amount of permanent depreciation is equivalent to a finding that such permanent depreciation was exclusive of the special benefits. He does say what the permanent depreciation was, but he also refuses to hold that special benefits should be deducted therefrom. This cannot be said to be a finding that there were no benefits.

The learned counsel also says there was no evidence upon which a finding could be based that any benefits in fact arose from the construction of the railroad.

When it is admitted that the referee erred in his refusals to find certain conclusions of fact and law which prima facie were material to the issues in the cases, the onus rests upon the plaintiffs herein to show that the errors were harmless. This duty we think the plaintiffs have failed to fulfil. The case is not so wholly barren of evidence upon the subject of benefits that we can say a finding of their existence would have nothing to support it. There is evidence upon which the referee might have found that some benefits had accrued to these lots by reason of the construction of the road, and when we see that the referee adopted-a rule of law which excluded from his consideration the existence of such benefits as a factor in arriving at the real damage, it is not an answer to the demand for a reversal of the judgment to show that the evidence was so conflicting that the referee would have been justified in finding as a fact that there were no benefits.

The defendants are entitled to the judgment of the trial court, jury or referee upon that question, and when the tribunal to pass upon the fact refuses to consider it because of an erroneous rule of law adopted in such cases, we must reverse the judgment where there was any evidence of the existence of benefits upon which a judgment might rest. In these cases there was such evidence, and for that reason the judgment must be reversed and

new trial granted, with costs to abide the event

All concur, except Gray, J., not voting.  