
    WILLIAM H. SCOTT, as Executor, etc., Appellant v. THE MANHATTAN RAILWAY COMPANY, ET AL., RESPONDENTS.
    
      Ddmages to abutting property caused by trespass of elevated railroad.— Judge’s charge—Particular use to which premises are actually put, as not interfered with by operation of road, no answer to plaintiff’s right to have unrestricted use of same.
    
    In an action to recover damages to usable value of plaintiff’s premises alleged to be due to maintenance and operation of the defendants’ elevated railroad in the street in front thereof, the trial judge charged the jury : “In deciding the question of damage to rental value during said period, you should consider it with reference to the purpose for which said premises were occupied and used during said period, and give due weight to the undisputed fact that it has been used since 1881 for the exhibition and sale of cut-glass goods, and that such goods are exhibited to better advantage by artificial light than by ordinary light.” The plaintiff only excepted to this portion of the charge. The jury rendered a verdict of six cents in favor of the plaintiff. Held, that the portion of the charge excepted to was inaccurate because it gave the jury the right to believe that they could not consider the purposes for which the premises might have been occupied, and only those for which they actually were occupied. The plaintiff was entitled to the use of his property for any purpose to which it might be devoted, and for which he was able to rent it; and the fact that he may have been obliged to rent it for a purpose in which artificial light could be used to better advantage does not prevent him from recovering what he might have received if he had been able to rent the premises with the advantages of natural light.
    Defendant consented to withdraw the portion of .the charge excepted to, but no direction was given to the jury to disregard it, nor anything said by the court from which the jury might intelligently infer that it should be disregarded. Held, that the error was not cured; that the fact that the jury rendered a verdict of six cents for the plaintiff, while the proof indicated that the loss was of a more substantial character, showed that the erroneous charge left its impression on the mind of the jury.
    Before Freedman, P. J., and McAdam, J..
    
      Decided January 11, 1892.
    Appeal from a judgment entered on the verdict of a jury in favor of the plaintiff for six cents damages, and from an order denying a motion for a new trial.
    
      Arnold & Green, for appellant.
    
      Davies & Rapallo, attorneys, and Julien T. Davies and Brainard Tolles of counsel, for respondents.
   By the Court.—McAdam, J.

The action was brought to recover damages to the rental value of the leasehold premises known as No. 36 Murray Street, in the city of New York, caused by the construction and operation of the elevated railroad in front of said premises. The title to the fee of the land is in Columbia College; but on the 29th day of November, 1870, the trustees of that college executed an instrument by which they leased the land to William EL Scott for the term of twenty-one years. Mr. Scott entered into possession under his lease, and built upon the land the building now standing there, which is five stories high with cellar and sub-cellar. It was finished in 1857 and is 25 feet wide, by about 75 feet deep; it has a marble front and is a fine building, with elevator, etc. It has always been used and occupied for business purposes. Mr. Scott died in the year 1883, leaving a last will and testament which was duly approved as a will of real and personal property, and under this will the plaintiff was named as» executor and trustee, and duly qualified as such.

Upon the trial of the action the court charged the jury that in deciding the question of damages to rental value they should consider it with reference to the purpose for which the premises were occupied and used during said period, and give weight to the undisputed fact that it has been used since 1881 for the exhibition and sale of cut glass goods, and that such goods were exhibited to better advantage by artificial light than by ordinary light.” The plaintiff excepted to this portion of the charge, and the defendants’ counsel consented that it be withdrawn ; but there is nothing in the case indicating that the jury were instructed to disregard it; nor was anything said by the court from which they might intelligently draw that inference.

The charge was inaccurate, for it gave the jury the right to believe that they could not consider the purposes for which the premises might have been occupied, and only those for which they actually were occupied.

The plaintiff was entitled to the use of his property for any purpose to which it might be devoted, and for which he was able to rent it; and the fact that he may have been obliged to rent it for a purpose in which artificial light could be used to better advantage, does not prevent him from recovering what he might have received if he had been able to rent the premises with the advantages of natural light.

Whether the trial judge intended to withdraw this portion of the charge, it is clear from the result that it left its impression on the mind of the jury; for they awarded the plaintiff but six cents damages, while the proof indicates that his loss was of a more substantial character.

As the value of property results wholly from its use, it follows that to deprive the owner of its most advantageous use is a deprivation of property. Indeed all that is beneficial in property arises from its use and the fruits of that use; and whatever deprives a person of them, deprives him of all that is desirable or valuable in the title or possession, and whatever limits or interferes with the most advantageous use of the property does a substantial injury to the title and possession, which is not compensated by nominal damages.

For these reasons, and without considering the other exceptions in the case, it follows that the judgment and order appealed from must be reversed and a new trial ordered, with costs to abide the event.

Freedman, P. J., concurred.  