
    Valentine E. N. Cook, App’lt, v. The New York Elevated Railroad Company et al, Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed December 11, 1894.)
    
    1. Appeal—Court of appeals—Facts.
    In order to sustain a reversal by the general term on the facts, it must appear that the findings of the referee are against the weight of evidence, or that the proofs so clearly preponderate in favor of a contrary result that it can be said, with a reasonable degree of certainty, that his conclusions were erroneous.
    2. Same—Findings.
    A refusal to find, though, in the abstract, error, is not reversible error, where the findings made render the request, if found, of no benefit to the appellant.
    3. Same.
    It is only when the court, in awarding damages, is guided by an erroneous rule, founded upon a refusal to find, that reversal will follow.
    
      4. Evidence—Elevated railway.
    Where, in an action against an elfevated railway for an injunction and damages, proof as to the actual rents, earned by the property, cannot be conveniently obtained, its place may be supplied by evidence equally convincing and satisfactory.
    5. Same.
    In such action, the plaintiff may call in expert testimony to establish the values of the fee and rental.
    Appeal from order of the general term of the court of common pleas for the city and county of Now York, entered on an order which reversed a judgment in favor of plaintiff entered upon the report of a referee and ordered a new trial.
    
      J. Aspinvjall Hodge, Jr., for app’lt; JReuhen Leslie Maynard, for resp’ts.
    
      
       Reversing 52 St. Rep. 253.
    
   Bartlett, J.

This is an appeal from the order of the court of common pleas for the city and county of New York reversing a judgment for plaintiff, entered upon the report of a referee and ordering a new trial. The plaintiff gives the usual stipulation. The reversal was upon questions of law and fact.

This action was brought for an injunction against the maintenance and operation of the elevated railroad in front of. the plaintiff’s premises No. 239 East Thirty-fourth street, between Second and Third avenues, in the city of New York, and asked damages for the pass trespass of the defendants.

The referee found the damages to be $676, and that the permanent value of the premises had been diminished to the extent of $1,500.

The judgment provided for an injunction, unless the latter sum is paid to plaintiff on his releasing and conveying the easements taken to the defendants.

In order to sustain this reversal by the general term on the facts it must appear that the findings of the referee are against the weight of evidence, or that the proofs so clearly preponderate in favor of a contrary result that it can be said with a reasonable degree of certainty that his conclusions were erroneous. Barnard v. Gantz, 140 N. Y. 249. 253; 55 St. Rep. 541; Baird v. Mayor, etc., 96 N. Y. 567; Aldridge v. Aldridge, 120 N. Y. 614; 31 St. Rep. 948; Devlin v. Greenwich Savings Bank, 125 N. Y. 756; 35 St. Rep. 922.

The general term, held there was no sufficient proof of damage to the fee value of plaintiff’s premises, nor of diminution of rental value traceable directly to the construction, maintenance or operation of the defendants’ railroad.

A perusal of the evidence satisfies us that the damage to the fee value and diminution of rental value are abundantly established, and that the amounts fixed by the referee are exceedingly moderate in view of all the proofs.

The general term laid great stress upon the fact that the proofs as to the actual rents earned by the property in contrbvery were not more complete.

While such testimony is desirable when it can be conveniently obtained, it by no means follows that its place cannot be supplied by evidence equally convincing and satisfactory.

The failure to show actual rentals during certain periods was fully explained, and expert testimony was furnished covering the time involved in this controversy. -

It was also proved that similar properties on the same street were injured in their rental values for about twenty-five to forty per cent.

It was proved that rentals in neighboring streets had increased during the same period.

In regard to the fee value of plaintiff’s property the proofs are equally satisfactory.

The finding of the learned referee is based upon the effect of the railroad on the fee value of the property in question of similar property in the same street, and the rise in values in neighboring streets.

We do not deem it important to deal with the evidence in detail and point out each particular item of proof which supports the findings of the referee.

It was competent for the plaintiff to call in expert testimony to establish the values of the fee and rental. Roberts v. N. Y. El. R. R. Co., 128 N. Y. 455, 473; 40 St. Rep. 454.

The general term held that there was not only the failure of proof on the part of the plaintiff already adverted to, but that the refusal of the referee to find at defendants’ request that the easements appurtenant to the plaintiff’s land, taken for the railway use, aside from any damage to the land from the taking, have, in themselves, only a nominal value, was reversible error.

The cases cited in support of this proposition are Bookman v. N. Y. El. R. R. Co., 137 N. Y. 302; 50 St. Rep. 703; Sutro v. N. Y. El. R. R. Co., 137 N. Y. 592; 50 St. Rep. 701.

In the Bookman' case a refusal to find a similar request was held error.

Judge Eabl said (p. 304): “ This request shall have been found and the refusal to find the facts shows that the court misapprehended the principles of law laid down in the cases of Newman v. Met. El. R. R. Co., 118 N. Y. 618; 50 St. Rep. 36, and Bohm v. The Same, 129 N. Y. 576; 42 St. Rep. 247. According to those principles the defendants were bound to pay the value of any property they actually took without any allowance against such value for benefits, and the allowance for benefits could be made only in the reduction of consequential damages. Hence it was important for the defendant to have a finding that substantially all the damages were consequential, so as to give room for the allowance of benefits.”

In the case at bar there is a finding, supported by the evidence, that there were no actual, substantial or peculiar benefits to the property in suit arising from the construction or maintenance of the defendants’ railroad in front of plaintiff’s premises.

This being so, the refusal to find was immaterial, although in the abstract it was error.

It is only when it appears that the court, in awarding damages was guided by an erroneous rule founded upon a refusal to find that reversal should follow. Sixth Ave. R. R. Co. v. Metropolitan El. R. R. Co., 138 N. Y. 548; 53 St. Rep. 181; Bischoff v. N. Y. El. R. R. Co., 138 N. Y. 257; 52 St. Rep. 374.

The order of the general term should be reversed and the judgment entered upon the report of the referee 'affirmed, with costs in all courts.

All concur. Ordered accordingly.  