
    DOYLE v. MANHATTAN RY. CO.
    
      N. Y. Common Pleas,
    
    
      General Term;
    
      February, 1890.
    
      Evidence; benefit, resulting to plaintiff.
      
      ] In an abutter’s action against an elevated railroad for injuries resulting from the maintenance and operation of the road, evidence on the part of the defendant showing an increase in business on the street in question since the construction of the road, and showing the course of trade and increase in the business value of plaintiff’s property—is admissible.
    Anna Maria Doyle brought this equitable action against the Manhattan Eailway Company and the Metropolitan Elevated Eailway Company to fix the damages to her property at Fifty-third street and Sixth avenue, in the city of Xew York, by the maintenance and operation of the elevated railway of the defendants for an injunction, etc.
    The judgment was in favor of the plaintiff for past damages, and enjoined the defendants unless they took proceedings within sixty days to condemn plaintiff’s easement, fixing the value thereof, and providing that no injunction issue in the event of its purchase by the defendants.
    From such judgment defendants took this appeal
    
      Edwa/rd 8. Bapallo and Brainard Tolies for appellants.
    
      W. G. Peokham for respondent.
    
      
       See, also, Newman v. Metropolitan Elev. Ry. Co., Court of Appeals, 2nd Division, March, 1890.
    
   Lakbemoee, Oh. J.

Tliere is one group of exceptions in this case which seem to render a reversal of the judgment inevitable. A number of witnesses who professed to be familiar with general business on the Sixth avenue were asked by defendants’ counsel the question, “ What has been the effect of the elevated railroad upon business in Sixth avenue % ” This, question Was followed by others of similar import, such as:

“What has been the course of business in that vicinity since the elevated railroad was built in that vicinity %

“State whether since the elevated railroad has been built in that street, business has increased over what it was before the elevated ?”

“ Has there been a change in Sixth avenue in regard to the amount and character of business done there since the elevated railroad, from what there was before the road ? ”

All of these questions, and all evidence bearing upon the course of trade, and any possible increase of business value •of the property since the building of the road, were excluded. We think this was error and that it may have resulted in very substantial injustice. In Druckers v. Elevated R. R. (106 N. Y. 157), the court of appeals had before it the converse of the present question. Evidence had been admitted tending to show that since the erection •of the elevated road, trade and business had fallen off in Division street.

It was claimed that this was error, but the court of last resort held that proof of the general deterioration of a neighborhood for business purposes was a proper factor to be considered in determining the damage to any individual’s property.

“ But to measure and appreciate that individual loss, the nature and extent of the general injury was necessarily to be considered. To ascertain how much the plaintiff was injured by the impairment of his easement required a survey of the general facts, and a deduction from them of the particulars and special damage to be estimated.”

If this principle is to be applied against the elevated road, common fairness requires that the road should be given the opportunity to invoke the same doctrine in its favor if it can. If defendants produce witnesses who will testify that since the building of the road business has. increased, and that the business portions of the property in question are more valuable in consequence of the existence-of the road, such evidence should be heard and given whatever weight the court considers it entitled to. The-court or jury might not believe such witnesses, and even if their testimony were accepted as true, the damages to the-residential portions of the building might more than neutralize any increase of rental value in the shops on the-ground floor. But the fact sought to be proved was one of the circumstances to be considered, and was something-which, if the court credited it, would have borne very materially upon the general question of the amount of damages to the building.

The judgment should be reversed and -a new trial ordered, with costs to appellant to abide the event.

Bisohoff, J., concurred.  