
    Edward Rorke and James Rorke, Appellants, v. The Kings County Elevated Railway Company, Respondent.
    
      Injunctive relief against elevated railroads—if not proper, past damages cannot be recovered in an equitable action—nor damages for injuries from dust, soot and, cinders — evidence of the price of abutting property — expert opinion as to the cause of a decrease in value — reason for admitting the opinions of experts.
    
    The owners of property abutting upon a street through which an elevated railroad has been constructed by authority of law, cannot maintain an equitable action for injunctive relief on the ground that the railroad has invaded their easements of light, air and access unless substantial damages are shown to have resulted to them from such invasion, and in the absence of such proof it is not important that the owners may have sustained damages by dust, soot and cinders, which in the absence of evidence to support injunctive relief can only be recovered in an action at law, and the same is true of past damages, they being recoverable in such an action only as incidental to equitable relief.
    The price at which an abutting owner purchased his property at public auction is competent evidence as hearing upon the question of its value at that time.
    A qualified expert, who has testified that property on the street in question and in the vicinity of that of such abutting owners has decreased in value, may give as his opinion that the cause of the decrease was to he found in the removal of business to points on the street above the property of the abutting owners.
    
      It seems, that the principle upon which the opinions of experts are admissible is necessity — the difficulty of proving the facts in any other manner.
    Appeal by the plaintiffs, Edward Borke and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 9th day of April, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits.
    
      James A. Sheehan [Stephen M. Hoye with him on the brief], for the appellants.
    
      Welton 0. Percy, for the respondent.
   Bradley, J.:

The plaintiffs, by this action, seek injunctive relief, founded upon the charge that the defendant, by the maintenance and operation of its railroad, has invaded their easements of light, air and access, or some or one of them, appurtenant to their premises situated on the easterly side of Fulton street in the city of Brooklyn.' The defendant’s railway was constructed in Fulton street in 1888, and since then has been operated. In the year 1890 the plaintiffs became the owners of the premises in question, which were then an inside lot, having a frontage of twenty-eight feet on Fulton street, and a depth of about ninety-seven feet, and there was a business building rqpon it. In 1892, by condemnation proceedings taken by the trustees of the New York and Brooklyn bridge to widen Liberty street, forty feet of the rear of the lot was appropriated. On this rested the rear portion, which had to be taken off, of the building. Thereupon the building was repaired and somewhat remodeled by the plaintiffs. It then ceased to be an inside building, and fronted not only on Fulton street but on Liberty street, and on what was known as a plaza.

The structure of the building is of brick and it has three stories. The first one is occupied as a dry goods store, and the second story for a printing office. It appears that the light is somewhat affected by the passage of the cars and by the stoppage of them at the station on the opposite side of the street, and the evidence tends to prove that, in consequence of dust, soot and cinders from the moving engines and trains, the windows in front on Fulton street have to be kept closed. Those in the store fronting on the street are large plate-glass windows for the showing of goods, as is quite usual in dry goods stores. The fact that the maintenance and operation of the railroad interferes with and excludes from the building any light which it otherwise would have the benefit of, is the consequence of the invasion of that easement of the plaintiffs in the street, and is a cause for injunctive relief if any substantial damage results to them from such invasion, otherwise not; and it was for the plaintiffs to establish by evidence such pecuniary damage. (O’Reilly v. N. Y. Elevated R. R. Co., 76 Hun, 283 ; 148 N. Y. 347.)

The plaintiffs proved that, by the terms of a lease which expired in 1888, the annual rent of the building was $4,500; and gave evidence tending to prove that, since they purchased the premises, the rent received for them has been much less, and a witness called by the plaintiffs as an expert testified that the premises had greatly depreciated in value since the railroad was constructed, while property in the blocks next to Fulton street on Montague and Pierrepont streets, which approach Fulton street from the west, have, during that time, appreciated from 50 to 100 per cent. This, without anything further appearing, would indicate a depreciation in the fee value of the premises occasioned by the railroad.

It appears that in 1890 the plaintiffs purchased the property at public auction for the sum of $18,300. This evidence was competent as bearing upon the question of value of the property at that time. (Knickerbocher Life Ins. Co. v. Nelson, 78 N. Y. 137; Guiterman v. Liverpool, etc., Steamship Co., 83 id. 358.) They received as the result of the proceedings taken to condemn the rear forty feet in 1892, $18,000. It is not necessary to inquire whether that fact could otherwise be treated as bearing upon the question of value. It cannot now.be so treated, because the evidence of it was not received for that purpose. The evidence of the witness before referred to, so called by the plaintiffs as an expert, was that the value of the forty feet so taken from the rear of the lot was $20,000.

The evidence, as given by a witness on the part of the defense, was that the property, including the premises in question on Fulton street in that locality, had depreciated in value in the last eight or ten years, and that property on Washington street, which is a street substantially parallel with Fulton street in that vicinity and next easterly from it, has also depreciated in value in the same time. This property on Fulton street is below the City Hall. The witness says that the cause of the decrease in value of the property on the street below the City Hall was the moving of business from there to above there on the street; that the removal of the business commenced twelve years ago; that the property on the street above the City Hall had increased in value several hundred per cent in the last five or six years, and that, in his opinion, the construction and operation of the defendant’s railroad has not affected injuriously the rental and fee value of property on Fulton street in the vicinity of the plaintiffs’ property.

There is no evidence to the effect that the plaintiffs’ easements of air and access have been substantially invaded or retrenched by the railroad or its operation. And the only inquiry for the purposes of the equitable relief sought by the plaintiffs is whether the plaintiffs suffered pecuniary damage by any invasion of their easement of light by the defendant’s railway. If no such damages have been sustained, it is not important for the purposes of this question whether the plaintiffs have or have not suffered damages by dust, soot and cinders, and other causes attributable to the operation of the railroad, since they, in the absence of supp'ort for injunctive relief, are the subject of an action at law only. A different question would be presented if it had not appeared, as it did at the trial, that the defendant had acquired the legal right to construct its railroad in the street.

The trial court found that there was no fee damage to the property in question occasioned by the erection and operation of the railroad. When this conclusion was reached, there was no legitimate occasion for the court to consider the question of past damages, since they could be recovered in this action only as incidental to the equitable relief dependent upon the establishment of fee damages. The evidence upon the subject of such damages presented a question of fact. And whatever view we might have taken of it if the trial had been heard by us originally, the conclusion of the trial court cannot properly be overruled on this review unless it can -be seen that it .was clearly against the weight of the evidence. This, in the view which could have been taken of the evidence at the trial, does not satisfactorily appear, and, therefore, such conclusion upon the question of fact is deemed supported by the evidence.

After the witness who was qualified as an expert had testified that the property in this vicinity on Fnlton street had decreased in value within the past few years, he was asked, What has been the cause of decrease ? ” And after the objection as incompetent, immaterial and irrelevant was overruled and exception taken by the plaintiffs’ counsel, the witness answered, “ The cause of it has been the moving of business from below the City Hall to above the City Hall,” and he further testified that there had been such removal of business. This question called for the expression by the witness of a conclusion quite comprehensive. His opinion, sought by it, was nevertheless founded upon his knowledge and observation, and by those means the witness was able to express his opinion of a fact which, it may be, would be difficult to prove in any other manner. If so, it may have been admissible from necessity, which is the general principle upon which opinions of witnesses are permitted as evidence.

While as an original proposition I should have had some doubt about the admissibility of the evidence, the ruling seems to come within judicial authority reasonably applicable to the question presented by the exception. In Hunter v. M. R. Co. (141 N. Y. 281) it was held permissible for a witness to answer the question, “ In your judgment, was there anything in the condition of Beaver and Water streets, which should induce the upward rise in values greater than would have existed in Pearl street, had there been no elevated railroad ? ” Also the question, Would existence of such a structure and the running of trains as described affect the rental value of the property in front of which it was constructed ? ” and the further question, “ Would it affect it favorably or unfavorably.in your judgment ? ” In delivering the opinion of the court, Judge Gray said: We think there was no error committed in overruling the objections. Within our decisions, in the course of this elevated railroad litigation, evidence is admissible to show 'the general effects caused by the maintenance and operation of the elevated roads upon-abutting and neighboring properties.” The view of the court in that case seems to bring the opinion of a witness, as to what has been the cause of the depreciation in a particular vicinity on a street in which the elevated railroad is operated, within the principle of the inquiry for his opinion whether and how the maintenance and operation of such a railroad has affected the property in such locality. And within the rule applied in that case the evidence was admissible.

The subject of opinions of experts and the limitations upon their admissibility in the elevated railroad cases have had much judicial consideration, and such rules have been adopted as were deemed necessary to the proper presentation by evidence of the facts to be determined. In Roberts v. N. Y. E. R. R. Co. (128 N. Y. 455) the subject received much discussion, and the question there presented was determined by a divided court. Whatever impression may be derived from the general views expressed in the prevailing opinion there, we think the principle applied to the specific question for consideration in the later case of Hunter v. M. R. Co. (supra) may be invoked to support the ruling of the trial court in the present case. No further question requires consideration.

Tlie judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.  