
    Mary I. Lewis, Plaintiff, v. The New York & Harlem R. R. Co. et al., Defendants.
    (Supreme Court, New York Special Term,
    October, 1898.)
    ¡Railroads — Liability to abutting owner for use of Park avenue (New York city) viaduct and of temporary illegal structure.
    Railroads which never interfered with the plan, and which participated only subordinately in the work, of the State Commission which exclusively controlled the construction of an elevated railroad viaduct in Park avenue in the city of New York, are not liable to an abutting owner because of its construction, and the only liability of the railroads rests upon their use of the completed viaduct and of a temporary structure, built between the lawful bounds of the railroad and the curb line of the avenue, which diminished the lawful light, air and access of and to the premises of the abutting owner.
    Action for injunction and damages against elevated railroad company.
    S. S. Gowdey, for plaintiff.
    A. S. Lyman, for defendants.
   Daly, J.

This action is brought to enjoin the defendants from maintaining and operating their elevated railroad in front of the plaintiff’s premises, and for damages for such operation from February 1, 1895, to the time of trial. The premises in question, Ho. 1613 fPai'k avenue, are situated on the easterly side of the avenue, between One Hundred and Fourteenth and One Hundred and Fifteenth streets, and are twenty-five feet wide in front and eighty feet deep. The building is a five-story structure, the ground floor being divided into two stores, and the other floors rented as flats. The case involves many of the questions that were settled in Taylor v. N. Y. & H. R. R. Co., 27 App. Div. 190, and Welde v. Same, 28 id. 379, which were similar actions by abutting property owners on the same avenue, but whose premises were situated, respectively, below and above the premises in suit, the former near One Hundred and Hinth street and the latter near One Hundred and Twenty-fifth street. In this case, an attempt is made by both parties to reopen some of the questions that were decided in the former cases, but the considerations urged in that regard should properly be presented to the appellate court. I am constrained to follow the general rules laid down by the Appellate Division, and which are favorable to the plaintiff’s cause of action in some respects. Plaintiff urges in addition, however, that the facts proved upon this trial show such a participation on the part of the defendants in the erection of the structure complained of as to bring them within the rule laid down by the appellate court in the case first cited, where it is said that their responsibility would begin “ when they undertook a part in the doing of the work,” as well as “ when they began to use it.” The evidence, while showing that the defendants participated in carrying out the design of the state commission, which had the work in charge, completely fails to show that in any respect the work of the commission was interfered with by the railroad, or that the participation of the railroad in'the work was not entirely subordinate to the commission. The latter had exclusive control of the work throughout, as it was intended by the legislature that it should. The liability of the defendants, in my opinion, arises solely from their use of the elevated structure, and also of the temporary structure which was employed for the passage of trains while the elevated structure was building. This is clearly established by the authorities quoted, and the plaintiff is undoubtedly entitled to recover such damage as was occasioned by the presence of the temporary trestle while the defendants’ trains were operated upon it, and for the presence of the permanent structure when the operation of trains was commenced thereon. I regard the effect of the temporary structure, situated, as it was, close to the plaintiff’s building, and causing, therefore, more annoyance by the close proximity' of passing trains, as much more serious than any effect of the permanent and central viaduct, after the removal of the temporary structure. This permanent central viaduct occupies a space less than sixty feet in width in the center of the avenue, which is 140- feet wide; the structure is thirty-five feet high, and is supported on steel'columns, which leave the surface of the street free for passage from side to side and gives uninterrupted traffic through the' side streets. Before this ■elevation of the tracks was made the railroad was operated upon a masonry embankment some seven feet high through the center of ■the avenue, which cut off access from one side of the avenue to the ■other and to One Hundred and Fourteenth and One Hundred and Fifteenth streets on the west. The change which has been made in the defendants’ railroad structure, and of which the plaintiff ■complains, leaves the plaintiff the use of the whole width of the avenue in front of her premises and for some distance north and south, a decided advantage over the condition of the avenue and railroad for many years before. I regard the benefit derived from this unobstructed use of the whole avenue as offsetting in great measure the obstruction to light and air caused by the elevation of the tracks; so that while the latter easements have been impaired, access to the premises from the avenue and the neighboring avenues has been increased. The great ¡width of the Fourth avenue, 140 feet, yields more light and air to the abutting houses, notwithstanding the elevated railroad structure, than are enjoyed by the residents upon any other of the city avenues where there are ■elevated railroad structures, and there is no street having such an incumbrance in which the interference is less with the comfort of the dwellers on either side. Fourth avenue has always been incumbered by a permanent railroad structure, and the change now made has its advantages as well as its disadvantages. My judgment is, in view of the circumstances, an allowance of $750 for fee ■damage will cover all the loss over and above the benefit. The most serious infliction upon the plaintiff was the operation of the railroad upon the temporary structure, while the central viaduct was in course of construction. This temporary structure was a trestle built between the lawful bounds of the railroad and the ■curb line, and which for a certain period deprived the plaintiff to .a great extent of the light and air and access to which she was entitled, and without any corresponding benefit. She is entitled to ¡recover from the railroad damages for loss of rental value due to its use of that temporary structure from the time she acquired her property until such use was discontinued on February 15, 1897, a period of two years, and I allow her $600 for such loss. She is also entitled to damages for the use by the railroad of the permanent structure from the latter date to the time of trial. Damage from this source, however, is very much less than that caused by the temporary structure, and' $100 is allowed upon that account.

Judgment for plaintiff accordingly, with costs, and a 5 per cent, extra allowance on the above sums.

Judgment accordingly.  