
    Golden v. Metropolitan El. Ry. Co.
    (New York Common Pleas—General Term,
    November, 1892.)
    In an action against an elevated railway company to recover fee damage and past damages, the trial court found noise as a fact and ruled as a conclusion of law that it was not an element of fee damage. Held, that a claim that allowance therefor was made in the award of fee damage not being apparent in the record, a conjecture that possibly the evidence as to noise may have been so applied was not a sufficient demonstration of error.
    While evidence that rental values have diminished since the presence of the railroad is competent, proof of the rent of a particular house in another street, not in the immediate vicinity, is incompetent.
    Appeal from judgment in equity, awarding an injunction and damages after trial of the issue before Bischoff, J., without a jury.
    The judgment enjoined the maintenance and operation of defendant’s railway in front of plaintiffs’ premises, No. 56 South Fifth avenue, New York city, unless they paid plaintiffs a sum fixed in a judgment for a conveyance of their easements taken by the same. There was also a money judgment for past damages and costs.
    
      Henry Schmitt, for plaintiffs (respondents).
    
      Samuel Blythe Rogers, for defendants (appellants).
   Pryor, J.

With impressive earnestness the learned counsel for appellants contends that the award of damages, past and permanent, is for amounts quite beyond any sums which the proof authorizes. We do not so understand the evidence. In deference to the insistence of counsel we have examined the record with uncommon care, and the result is a persuasion that the conclusion of the trial court is not without adequate support. The special point, so confidently urged, that the fee damage is two thousand dollars in excess of the estimate of respondent’s own witness, however startling in the statement, ceases to be of force when we consider that the estimate makes no allowance for the subsequent expenditure in improvement of the building. Then, too, the evidence is ample to justify an inference that, but for the railroad, the value of the premises would have exhibited that general advance so conspicuous in properties along adjacent streets not affected by the railroad. At all events, these were circumstances for consideration by the learned trial judge, and we are not to substitute our judgment for his in deducing conclusions from evidence of so equivocal or ambiguous an import as to be susceptible of diverse constructions.

Since the proscription by the court of last resort of all direct testimony to the effect of the railroad on the value of property, the fact is to be ascertained only by evidence, at best, of an indeterminate and inconclusive character; and that the case must be peculiar indeed in which the judisial mind can repose upon the assurance of an absolute conviction. We may doubt the correctness of the decision below, we may even incline to a contrary conclusion, and still we shall not be authorized to reverse the judgment. Betjeman v. New York etc., R. Co. (herewith decided).

But the judgment is challenged for error in law, and we are to determine whether it be so invalidated.

It is an unquestionable proposition that noise is not an element of fee damage, and, in effect, the trial judge so rules in his conclusions of law. But, appellants say that nevertheless allowance is made for noise in the award of such damage. We do not so read the record. True, noise is found as a fact, and rightly, because it is an element of past damages, (Kane v. E. R. R. Co., 125 N. Y. 164; Messenger v. E. R. R. Co., 129 id. 503, Moore v. E. R. R. Co., 130 id. 523; Mitchell v. E. R. R. Co., 132 id. 552); but that it entered into the estimate of fee damage is not apparent. At most the argument of appellant warrants a conjecture that possibly evidence legitimately in the case, may have been applied to an improper purpose, but this is not a sufficient demonstration of error. Mitchell v. E. R. R. Co., 182 N. Y. 552; Messenger v. E. R. R. Co., 129 id. 503.

Appellants offered proof of the specific rent in 1876, of particular houses in Houston street, but on respondent’s objection the evidence was excluded. The respondent had previously tendered evidence, which on appellants’ motion was rejected, of the rent of a house in the vicinity and on the same street with the premises in question. Adhering to the rule which appellants themselves had procured to be established for the trial of the case, the court denied their offer, but received evidence of the general course of rentals in Houston street, that is, whether they were higher or lower. The witness testified that the rents were lower since the construction of the railroad. The court was not only consistent, but was correct in its ruling. That, as general fact, rental values have diminished since the presence of the railroad is competent evidence (Drucker v. E. R. R. Co., 106 N. Y. 157), not so proof of the special rent of a particular house on another street, “ not,” as the court observed, “in the immediate vicinity.” Doyle v. E. R. R. Co., 128 N. Y. 488. Were the specific objection to the question undeniable, which, however, it is not (New York etc., R. Co. v. Fifth Nat. Bank, 135 U. S. 432), still the ruling should be sustained, because the evidence was essentially and irreparably incompetent. Tooley v. Bacon, 70 N. Y. 34, 37.

In any event the error, if such it be, was of no prejudice to appellants, for the witness testified that “ the rents are less by from $50 to $100 on each house ” than before the railroad, thus showing not only the fact but also the ratio of diminution. The pendency of a common law action for past damage was no bar to the recovery of such damage in the present suit, and for two decisive reasons: First, the defense was not pleaded, and secondly, the plaintiff tendered a discontinuance.

Observing no error in the record, we must affirm the judgment.

Judgment affirmed, with costs.  