
    Martin v. Manhattan Ry. Co. et al.
    
    
      (Supreme Court, General Term, First Department.
    
    February 8, 1892.)
    1. Elevated Railways—Damages to Rental Value—Limitation.
    Damages for injuries to the rental value of premises caused by an elevated railroad cannot be awarded for a period greater than six years prior to the commencement of an action for their recovery.
    2. Same—Ebriod Occupied in Erecting New Building.
    Damages for injuries to the rental value of premises occupied by a building, caused by the operation of an elevated railway, cannot be recovered for a period during which the building was being pulled down, and another erected in its place.
    Appeal from special term, New York county.
    
      Action by Benajah M. Martin against the Manhattan Railway Company and another to recover damages for injuries to property. From a judgment for plaintiff, defendants appeal.
    Reversed.
    Argued before Van Brunt, P. J., and Barrett and Andrews, JJ.
    
      Davies, Short & Townsend, (Julien T. Davies and Arthur O. Townsend, of counsel,) for appellants. Peeham & Tyler, (H. W. Tyler, of counsel,) for respondent.
   Andrews, J.

The rental damages allowed in this action were $2,651.59, and the fee damage was fixed at $5,500. We think there was an error in fixing the rental damages which requires a reversal of the judgment. The action was commenced on September 17, 1889, and rental damages could be recovered in this action for a period of six years only, immediately prior to that date. Cornell v. Railway Cos., (Sup.) 13 N. Y. Supp. 511; Hamilton v. Railroad Co., (Super. N. Y.) 9 N. Y. Supp. 313; Kearney v. Railway Co., 14 N. Y. St. Rep. 854. Such rental damages were allowed from March 19, 1883, the date when the plaintiff purchased the property, and they should have been allowed from September 17, 1883, only.

We also think it was error to allow rental damages for the period during which the old building was being pulled down, and the present building was being erected. Such rental damages have been refused in several cases not yet reported, but which are cited upon the brief of the appellants’ counsel; and under the doctrine laid down by the court of appeals in the case of Tollman v. Railway Co., 121 N. Y. 119, 23 N. E. Rep. 1134, it is clear that such damages should not be allowed. In that case the court said: “ He can recover only the damages he sustains from day to day, or from month to month, or from year to year, in the use of his lots; and the question to be determined in such action is, how much has the rental or usable value of the lots been diminished by the construction, maintenance, and operation of the railroad? As a basis for estimating the damages, the lots must be taken as they are used during the time embraced in the action, and the plaintiff’s recovery must be confined to the diminished rental or usable value of the lots just as they were.” The evidence in this case shows that the old building which was on the lot when the plaintiff purchased the property was removed, and the construction of the building now on the lot was commenced in the summer of 1883. The new building was finished some time during the winter of 1883-84, and during the period while it was being erected it could not have been leased, and the plaintiff could not have suffered any actual loss of rent.

It is suggested by the plaintiff’s counsel that, if "the objections taken to the amount of rental damages should be sustained, the excessive amount could be ascertained by computation, and deducted from the judgment, and thus the necessity of a new trial be avoided. This, perhaps, might be done with reference to the amount awarded for the period from March 19,1883, to September 17, 1883, but we cannot undertake to determine, from the evidence in the case, just what amount should be deducted for the period occupied by the removal of the old building and the erection of the new one. The judgment should be reversed, and new trial ordered, with costs to defendants to abide the event. All concur. 
      
       The cases referred to are Ottinger v. Railroad Co., (Sup.) 18 N. Y. Supp. 238, and Rhinelander v. Railway Co., in which no opinion was written, and which is"therefore not reported.
     