
    Henry Boetzkes, Respondent, v. The Manhattan Railway Company and The New York Elevated Railway Company, Appellants.
    
      JMemted railroads — evidence of neighbors as to changes in rents is incompetent to prove rental damages — what proof is necessary to establish fee damages.
    
    Where an action is brought against the elevated railroad companies of New York city to recover rental and fee damages, the plaintiff cannot make proof of rental damages by showing, by his neighbors, changes which have occurred in the rental values of their premises.
    In order to recover for damages which have resulted to the fee, the plaintiff must show either a decline in the value of his property after the elevated railroads were built, or that his premises have not shared in the advance of value due to the growth and development of the city, participated in by neighboring property off the line of the elevated railway.
    Where he does not prove either of these propositions, and the evidence given by the defendants indicates that the fee has not been damaged, it is erroneous to award him fee damages.
    Appeal by the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of July, 1894, upon the decision of the court rendered after a trial at the New York Special Term.
    This action was brought to restrain the operation and maintenance ■of the defendants’ elevated railroad in front of the plaintiff’s premises and to recover the damages caused thereby.
    
      George T. Aldrich and Julien T. Demies, for the appellants.
    
      Edwin M. Felt and Leo C. Dessctr, for the respondent.
   Patterson, J.:

On the trial of this cause the court, under the defendants’ objection, admitted testimony of one Philip Gombrecht respecting the change in rental values of premises belonging to him situated near the property of the plaintiff involved in this action. This testimony was of the same character as that condemned by the Court of Appeals in the recently decided case of Jamieson v. Kings County Elevated Railroad Company (147 N. Y. 322). Even if this evidence was properly admitted, the judgment of the court below cannot stand.

For we think that there is another ground in the record for the reversal of the' judgment, and that arises in connection with the evidence respecting the fee value of the premises in question. Substantially the whole issue as to the fee value turned upon the testimony of expert witnesses. The plaintiff was obliged to show either a decline in value of his property after the building of the elevated railway, or that his premises had not shared in the advance of values, due to the growth and development of the city, participated in by neighboring properties off the line of the elevated railroad.

Two findings of fact were proposed by the defendants, and a request made that they he adopted—one, that the value of the premises in question was at least $20,000 greater than it was at the period of highest values prior to the building of the defendants’ railway; and the other, that the value of the plaintiff’s lots, excluding the buildings, was at least $40,000 greater than it was prior to the construction of the defendants’ railway. If these facts had been found by the learned judge, it seems that they would have compelled a conclusion that there was no real damage to the fee. The testimony of the plaintiff’s professional witness is to the effect that there was an increase in the value of the plaintiff’s lots from 1877 to the present time of about seventy-five per cent. The elevated railroad was constructed and put into operation in the year 1878. The evidence does not show anything regarding the increase in values of property off the line of the elevated railroad since it was constructed on Third avenue. We think, therefore, as the case is now presented, the defendants were entitled to the findings of fact requested to be made, and that had they been found the result in the court below would have been different.

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

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Judgment reversed, new trial ordered, with costs to appellants to abide event.  