
    Joseph Steinert, Respondent, v. The Metropolitan Elevated Railway Co. et al., Appellants.
    (New York Superior Court
    General Term,
    May, 1895.)
    The fact that the past rental damage was found to be §60 yearly and that the fee value of the easements taken was fixed at $1,200 does not authorize the presumption that in fixing such fee value the injury from noise and vibration was included.
    Appeal from judgment for plaintiff, entered upon findings and conclusions made at Special Term..
    
      Julien T. Da/oies and BraÁnard Tolies, for appellants.
    
      W. W. Badger, for respondent.
   Per Curiam.

An objection made by appellants to the judgment is that the judge, in estimating the fee value of the easements taken, included the effect of noise and vibration upon that value. This does not appear from any finding or. conclusion. The assertion of it depends upon reasoning from the whole case. It is said whereas the damage in the past was adjudged to be at the rate of about $60 a year, and the proportion of yearly rent to the fee value was proved to be about one-tenth 0- it, the finding that the fee value of the easements taken was $1,200 was founded upon an excessive valuation of the fee. The argument is that as the past rental damage was $60 yearly, the fee damage could not be more than $600. Upon this it is said that to reach the conclusion that the foe damage was $1,200 the injury from noise and vibration must have been added. This conclusion is not necessarily correct. The two valuations did not regard the same time nor thensarne circumstances. Valuations are not always continuous. Increase or decrease of values are often sudd'en. In ascertaining a present value the reasonable certainties of the future fix, with other elements, the present value. As in finding past damage, so in fee damage it is competent to inquire- if in the future, having in view the reasonable certainties of the future, the value in the future would be more or less if the railroad were absent. This is a matter of fact, as is the amount of the difference, if any there would be. On this matter the court found for the plaintiff, and the appellants have not shown that there was error in the finding.. The plaintiff is not primarily bound to show that the finding is correct. It is enough if he show that the defendants have not established error. Such error has not appeared in the evidence or facts.

Present: Sedgwick, Oh. J., and McAdam, J.

Judgment affirmed, with costs.  