
    Clinical Instruction Company, Resp't, v. New York Elevated Railroad Company, et al., App'lts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    Damages—Elevated Bailroad.
    Where it does not appear that, by reason of the presence and operation of the road, any smaller amount of rent is fixed and received than would have been demanded or paid had the structure not existed, the element of loss of rental value is absent from the case.
    Appeal from a judgment in favor of plaintiff.
    B. Tolles, for app’lts; J. R. Abney, for resp’t.
   PATTERSON, J.

It is made to appear very plainly, by the evidence, that the pemises involved in this action have been seriously affected by the construction and operation of the elevated railway in front of them. The structure comes to within, a few feet of the front wall of the building, and he depot station and shed extend easterly along Thirty-Fourth street to within twenty-five feet of the westerly line of the building. Trains pass every few minutes, and the ordinary ill effects of said conditions are fully pointed out in the proofs.. There was a clear case, therefore, presented for an injunction, or compensation for the taking of easements, in the ordinary form of alternative relief; but there is some difficulty in arriving at what should be fairly allowed as compensation for taking the easements. The expert testimony, such as it is, is not altogether satisfactory, but there was enough to justify the trial judge in fixing the amount allowed for depreciation of fee value at the figure he adopted, and, under all the circumstances of the case, we are not disposed to interfere with his conclusion on that subject.

But with reference to the damages allowed for rental value, the judgment cannot be sustained. Almost all that evidence as to depreciation of rental values was of the character condemned in the Jamieson Case, 147 N. Y. 322; 69 St. Rep. 688; and there was so much of that class of evidence allowed that it could not fail to have been controlling in the decision. In addition to that,, it also appears that the plaintiff did not, in reality, suffer any damage by reason of any definite loss of rents, for its relation to ,the tenant of the pemises was such that it seems to have contemplated that the tenant would not pay even such rent as was nominally secured by leases of it, it being the intention of the plaintiff to accept just so much of the agreed amount of rent as the tenant was able1 to pay. It does not appear that, by reason of the presence and operation of the elevated railway, any smaller amount of rent was fixed or received than would have been demanded or paid had the structure not existed. The element of loss of rental value was, therefore, absent from the case, and the factors to sustain a finding of damage such as would be necessary in a case of this character are not to be found in the proofs before us.

We think, therefore, that the judgment appealed from should be reversed, unless the plaintiff stipulates to waive so much of the-judgment as allows a recovery of money damages to rent value. If such stipulation is made, the judgment will be modified by striking therefrom the provision respecting the recovery of damages to rental value, and by reducing the costs as taxed by deducting therefrom the sum of $7 5, being that much of the extra allowance granted after the trial of his action without costs. If such stipulation is not given, a new rial will be ordered, with costs to the appellant to abide the event.

All concur.  