
    Benajah M. Martin, Resp’t, v. The Manhattan Railway Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 18, 1892.)
    
    1. Railroad—Elevated—Damages.
    In an action against an elevated railroad damages to the rental value of plaintiff’s premises cannot be recovered for a longer period than six years prior to the commencement of the action.
    .2. Same.
    Nor can rental damages be allowed for a period during which an old building on the premises was being removed and a new one erected in its stead, as plaintiff during such period could not have leased it and hence could not have suffered any actual loss of rent.
    Appeal from a judgment in favor of the plaintiff, recovered ■after a trial at special term.
    
      Julien T. Davies and A. 0. Townsend, for app’lts; E. W. Tyler, for resp’t.
   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. N. Y. & Man. R. Cos. 37 St. Rep., 624; Hamilton v. N. Y. El. R. Co., 58 Superior Ct., 22; 30 St. Rep., 17; Kearney v. Manhattan R. Co., 14 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 appellant’s counsel; and under the-doctrine laid down by the court of appeals in the case of Tallman v. Metropolitan R. Co., 121 N. Y., 119; 30 St. Rep., 491, 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 isr 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 betaken 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 sometime during the winter of 1883-4, 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 he 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.

Yah Bruht, P. J., and Barrett, J., concur.  