
    Henry Messenger, Resp’t, v. The Manhattan Railway Co. et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed January 20, 1892.)
    
    1. Railroad—Elevated—Rental value of abutting premises—Evidence.
    Evidence of annoyance to the owner of abutting premises by the erection of an elevated railroad arising from interference with his privacy in the occupancy of the premises, from noise and from interception of the view thereof from the other side of the street, is competent as to rental value but not as to the fee damage.
    3. Same—Trial—Requests to find.
    ■ A refusal to find that plaintiff had no such easements which could be impaired by the operation of the railroad will not be considered a fatal error where it does not appear that the court took such matters into consideration in assessing the fee damage.
    Appeal from judgment of the New York superior court, general term, affiirming judgment in favor of plaintiff.
    
      Samuel B lythe Rogers, for app’lts; Lewis L. JDelafield, for resp’t.
    
      
       Affirming 36 St. Rep., 1034.
    
   Earl, J.

The plaintiff, an abutting owner of property on Second avenue in the city of Hew York, brought this action to recover a judgment against the defendants to restrain them from maintaining and operating their road in the avenue in front of his premises, and also for damages. The action was brought to trial and the plaintiff recovered a judgment assessing his fee damages at $2,000, and staying the operation of their road until that sum should be paid, providing, however, that they should pay only $1,500 if they removed their station, stairs and approaches, leaving the railway structure to stand and be operated ; and also awarding the plaintiff judgment for the rental damages sustained by him to the day of the trial.

Upon the trial the plaintiff, besides evidence as to the interference by the railroad with his easements of light, air and access, gave evidence, without objection to its competency or materiality, of the annoyance which he suffered from interference with his privacy in the occupancy of his premises, and from noise occasioned by the operation of the railroad, and also showing that the railroad and the structures connected therewith intercepted the view of his premises by persons passing on the other side of the avenue. This evidence was competent as bearing upon the rental value. The structure being an illegal one, the plaintiff was entitled to recover for all the damages of every kind caused to him while it was illegally maintained and operated; and such is the effect of our decisions in Kane v. The Elevated Railway Co., 125 N. Y., 164; 34 St. Rep., 876, and The American Bank Note Co. v. The Same, 41 St. Rep., 531, recently decided in this court. It does not appear that this evidence was received as bearing upon the fee damage, and the trial judge was not asked to restrict its bearing to the rental damage. It appears to have been received generally without objection. According to our decision in the case last cited, it was not competent in relation to the fee damage. In estimating that, evidence must be confined to what the railroad company is authorized to take, or interfere with, to wit; the easements of light, air and access.

At the close of the trial the defendant’s counsel asked the trial judge to find the following matters, to wit:

“ There is no easement or other interest appurtenant to the plaintiff’s premises entitling him to be protected against loss of privacy due to the use of the street by passengers or other persons, if such use be authorized by the mayor, aldermen and commonalty of the city of Mew York, and the People of the State of Mew York.
“ There is no easement or other interest in or over said Second avenue appurtenant to the premises of the plaintiff which would entitle him to the use of said Second avenue for the purpose of having the exterior of his premises conspicuously visible from the other side of the said Second avenue.
“ There are no easements or other interests in or over said Second avenue appurtenant to said premises which would be impaired or infringed by the use of the elevated railway station and the approaches thereto by idlers or loafers, even though such might render the use and occupation of the said premises disagreeable, or result in money damages to the plaintiff.
“ There is no easement or other interest in said street appurtenant to said premises which authorizes the owner thereof to control the amount of noise made in said street by the permission of the mayor, aldermen and commonalty of the city of Mew York •and the People of the State of Mew York.”

And the court refused so to find. It does not appear that the plaintiff’s counsel claimed that his client owned such easements as were therein specified, nor did the trial judge find that he had •such easements. The scope of them is uncertain. If it was meant by them that the judge should find that these matters should not be considered upon the subject of the rental damage, then it would have been erroneous to find them. If he had been asked to find that these matters could not be considered upon the question of the fee damage and he had refused, he would have committed an error. As it does not appear with any certainty in the record that he took these matters into consideration in assessing the fee damage, we are unable to perceive that he committed error in these refusals.

The counsel for the appellant makes one more point, and that is that it was error as matter of law for the court to find that the easements taken by the railway proper as distinguished from the station and other structures were worth $1,500. It is quite true that no witness was produced upon the trial who divided the-damages precisely as the judge did, to wit: $1,500 as the fee damage on account of the main structure, and $500 on account' of the station and other structures connected therewith. But the estimates of witnesses, and all the facts and circumstances of the case were before the judge, and we think there was sufficient evidence to enable him to apportion the gross amount of the fee damages-in the manner he did.

Our attention is called to no other alleged errors affecting the-judgment, and it should therefore be affirmed, with costs.

All concur; Gray, J., in result.  