
    George Storm, Resp’t, v. New York Elevated Railway Company et al., App’lts.
    
      {Supreme Court, General Term, First Department,
    
    
      Filed November 16, 1894.)
    
    Damages—Elevated bailway.
    The company is not relieved from liability for loss of rentals by reason of the fact that the tenement is better in its construction than the neighborhood, in which it is situated, warrants.
    Appeal from a judgment in favor of plaintiff.
    
      B. L. Maynard, for app’lts; William 6. Pechham, for resp’t.
   Van Brunt, P. J.

Upon an examination of the evidence in this case, I am of the opinion that the damages awarded were too high. This aparment was built long after the elevated railroad was erected and long after the effects of its operation upon adjacent property were well known. It is therefore difficult to understand how its operation could have caused any falling of the rents in the apartment. It might well be the cause of an inability to procure as advantageous rents as otherwise would have been obtained, but a situation existing before the erection of the building, the effects of which are well known, could not be the cause of a fall in rents once obtained. If any such fall did occur, we must look for some other cause. In the case at bar this cause seems to be apparent. It appears that a fictitious scale of rental was established by the builder of this apartment, undoubtedly to give it an apparent enhanced value, by giving to tenants of these apartments agreeing to pay these excessive rents a period of time free from rent. When these apartments changed hands, this deceptive practice was discontinued, and the scale of rents naturally fell, and it took some time for them to find their level. It is also claimed by the appellant that another reason for the apparent smallness of rent received is because of the fact that the apartment is better in its construction than the neighborhood in which it is situated warrants; that, if situated at the corner of Lexington avenue (where there is no elevated road), it would rent' much better. The char: acter of the neighborhood, so far as it is affected by the existence and operation of the elevated railroad, affords no bar to an owner from improving his property with the best of structures, and the elevated road must compensate for damage to such structure by its continuing trespasses. If it desires to prevent the application of this rule, it must condemn the right upon which it has seized, and which it has appropriated. Until it does this, an owner cannot be prevented from improving his property as he sees fit; and, if such improvements do not make the return they would have done had there been no elevated road in the avenue or street, the elevated road must compensate for such loss. I am of the opinion, therefore, that the damages for lost rentals should be reduced to $7,058, and the fee damages to $9,000, with interest from date of entry of original judgment, the extra allowance to be reduced accordingly, and the judgment, as thus modified, affirmed, without costs. • .

All concur.  