#### Edith Kane, Respondent, *against*The Metropolitan Elevated Railroad Company *et al.,*Appellants.

(Decided June 3d, 1889.)

In an action against the Metropolitan Elevated Railroad Company and the New York Elevated Railroad Company for damages caused by the construction and maintenance of an elevated railroad in the street in front of plaintiff’s premises, it appeared that the road'was built by the latter company under an'agreement by which the former was to share in the use thereof on its paying one-half the costs of construction when it should require such use; that such contemplated purchase was never consummated; and that by a-subsequent agreement the Manhattan Railroad Company acquired nearly all of the stock of the defendant companies and operated their roads. *Held,*'that the proof was not sufficient to sustain a judgment against the Metropolitan Company.

In such action the noise made by passing trains' may be considered as an element of damages.

Testimony by a witness who last had possession of a lease ' that the endeavored to find it among his papers, without- success, that subse- *295. quently he did not have it, and that he was in the hahit of destroying, old papers to get rid of them, is sufficient proof of loss to warrant secondary evidence of its contents.

Appeal from a judgment of this court entered upon the verdict of a jury and from an order denying a motion for a new trial.

The facts are stated in the opinion.

*Edward S. Rapallo*and *Samuel Blythe Rogers,*for appellants.

*John A. Weekes, Jr.,*for respondent.

Allen, J.

The plaintiff is the owner of the premises known as No. 136 Pearl Street in the City of New York, and brought this action for damages to the rental value of her property caused by the construction and operation of the elevated railroad in front of her premises. The answer of the defendant the Metropolitan Elevated Railway Company expressly denies that it ever erected, owned, maintained, or operated an elevated railway in or through Pearl Street. The answer of the defendant the New York Elevated Railroad Company admits the construction and ownership of the elevated railway structure in said street. At the close of the plaintiff’s case, the counsel for the defendants moved, on behalf of each of the defendants, to dismiss the complaint, on the ground that it nowhere appeared that either, of the defendants had anything to do with the construction, maintenance, or operation of the elevated railroad in Pearl Street. The motion was denied, and counsel for defendants noted a separate exception on behalf of each defendant to the denial of the motion. This motion was renewed at the close of the whole case, and the defendants duly noted a separate exception on behalf of each defendant to the denial of the motion upon the grounds stated. The appellant now claims that the judgment should be reversed as to the defendant the Metropolitan Elevated Railway Company.

*296As to this branch of the case the appellant is correct, for the complaint should have been dismissed as to the defendant the Metropolitan Elevated Railway Company, on the ground that it was hot shown by the proof in the case that the said defendant has at any time constructed, owned, maintained, or operated an elevated railroad in Pearl Street.

The evidence offered in support of plaintiff’s case against the Metropolitan Elevated Railway Company consists of two agreements between the New York and Metropolitan Companies, the agreement between the New York, Metropolitan, and Manhattan Companies known as the “ Tri-partite Agreement,” and the agreement between the same companies known as the “ Merger Agreement.” The two agreements first mentioned are executory in their character; the first providing that the New York Elevated Railroad Company shall have the right to construct lines on the route or routes between South Ferry and Chatham Square, and that the Metropolitan Elevated Railway Company, if it shall determine to use the part so constructed, shall have the right to do so upon payment to the New York Elevated Railroad Company of one half the cost, charges, and expenses incurred in its construction; the second providing that the Metro.politan Elevated Railway Company should not be required to pay for its half of the structure from Beaver Street to Chatham Square until it shall require the use of the same, and then it shall pay one half of the full cost thereof, as defined in the previous agreement. These agreements gave the Metropolitan Elevated Railway Company no interest in this part of the railway until the terms of the agreement were complied with by it, which appears never to have been the case. By the “ Tri-partite Agreement,” it simply appears that the New York Elevated Railroad Company had constructed the road at its own expense, and the Metropolitan Company was contemplating the purchase of one half of it, Which appears never to have been consummated. By the 11 Merger Agreement,” the Manhattan Company acquired all or very nearly all of the stock of the other two companies. But the identity of the two companies is not lost by this agreement, nor their legal status changed.

*297This proof is entirely insufficient for the purpose of showing any ownership or interest by the Metropolitan Elevated Railway Company in the elevated railway in Pearl Street. The judgment should therefore be reversed as to the said defendant the Metropolitan Railway Company, with costs.

We find no reason for disturbing the judgment as to the other defendant, the New York Elevated Railroad Company. Nearly all the questions raised by the exceptions have already in other cases been discussed and decided in this and other courts adversely to the defendant.

The' judge at the trial charged that the jury might consider the element of noise in awarding damages, and refused to charge that the noise of the passing of the trains was not an element of damage, to which the defendants’ counsel excepted; and our attention was called to the case of *Peyser*v. *The Metropolitan Elevated Railway Company*(13 Daly 122), where it was held that there could be no recovery on account of noise caused by passing trains. This case was before the General Term of this court in November, 1884, and before the decision of the *Lahr Case*in the Court of Appeals, and in applying the *Story Case,*the court did not consider it could go beyond the injury to easements of light, air, and access, in awarding damages. Since the decision of the *Lahr Case*in 1886, we have affirmed judgments at the General Term in which this same point has been raised, assuming that the decision of the majority of the Court of Appeals in the *Lahr Case*“ opened the door to proof of every injury traceable to the road or its operation.”

There does not appear to be any merit in the exception which has reference to the testimony of Birchett in regard to one of the former leases of the premises in question. The witness had already testified that he had endeavored to find the lease among his papers, but could not find any of the old leases prior to May, 1888, and subsequently that he did not have it, and said, “ I destroy these papers to get rid of them.’’ The controversy was not between the parties to the *lease;*but even if it had been, we think that the loss of the instrument was sufficiently proved to warrant the admission of secondary evidence of its contents.

*298The judgment, as against the defendant the New York Elevated Railroad Company, is affirmed, with costs. The judgment, as against the defendant the Metropolitan Elevated Railway Company, is reversed, with costs.

Bookstaver, J., concurred.

Judgment accordingly.