#### William W. Thompson, Respondent, *against*The Manhattan Railway Company *et*al., Appellants. Pell Thompson *et*al., Respondents, *against*The Manhattan Railway Company *et*al., Appellants.

(Decided February 10th, 1890.)

In actions against three elevated railroad companies, as joint defendants, for damages to plaintiffs’ real property from the construction, maintenance, and operation of an elevated railroad in the street in front thereof, and for injunctions restraining defendants, the court found that one of the defendants had not taken any part in the construction, maintenance, or operation of such railroad, negativing the allegations of the complaint as to such defendant; and it was not alleged that such railroad company threatened or intended to take any part in the maintenance or operation of said railroad. *Held,*that judgments against all the defendants must be reversed as to said railroad company.

In such an action, the admission of evidence on the part of plaintiffs of the value of the premises without the location of the road, is not ground of reversal, where similar evidence was admitted on defendants’ part.

The rejection of evidence of a witness as to what he paid for rent of premises in the neighborhood is not error, where it was not shown under what circumstances he occupied the premises, or why the landlord was induced to receive such amount as rent for the premises.

Bemaindermen may maintain an action in equity to restrain the maintenance of an elevated road in the street in front of the premises in possession of the life tenant, and for damages for the injury to the inheritance. And in ascertaining their damages, the damages to the whole fee may be apportioned between the life tenant and remaindermen according to the annuity tables.

Between 1868 and 1870 the property in question rented for $5,350 per annum; in 1870-71, when partly occupied, for $3,350; in 1871-76 for $4,250; in 1876-77, being the year immediately preceding the construction of defend*65ants’ road, for $3,900; and since then for about $3,000. *Held,*that an allowance of $25,000 damages was excessive and should he reduced to $15,000.

Appeals from judgments of this court entered on trial by the court without a jury.

The facts are stated in the opinion and in the report of the decision at the Special Term, 15 Daly p. 439.

*Edward S. Bapallo, Brainard*Tolies, and *Henry B. B.*Stapler, for appellants.

*John A. Weeks Jr.,*for respondents.

Bookstaver, J.

These two actions were tried at the same equity term by the same judge, in relation to the same premises, and a judgment was rendered in both at the same time. They may therefore with advantage be considered together.

In the year 1870 Mary Clendinen Thompson, wife of the plaintiff William W. Thompson, died intestate seized and possessed of the premises No 168 Pearl Street, and left her surviving her husband, and Pell Thompson, Mary G. Thompson and Clendinen Thompson, issue of said marriage and her only heirs at law. In April, 1888, William W. Thompson, as tenant by the curtesy, commenced his action in equity against the elevated railroads in front of the premises for the loss of rents and for an injunction restraining the defendants until his future damages should be ascertained and paid; and the plaintiffs in the second action also commenced their action in the same year against the elevated railroads in front of said premises for injury to their inheritance, and demanded an injunction and damages.

The court, in the seventieth paragraph of its decision in the first action, and the seventy-fifth paragraph of its decision in the second action, has found that the Metropolitan Elevated Railroad Company has never constructed nor taken any part in the construction of an elevated railway in Pearl Street in front of and abutting upon the premises described in the complaint. And in the seventy-first paragraph of its decision in the first action and the seventy-sixth paragraph of its decis*66ion in the second action, the court has found that the Metropolitan Elevated Railway Company has never maintained nor operated nor taken any part in the maintenance or operation of an elevated railway in Pearl Street in front of and abutting upon the premises described in the complaint. The only allegations of the complaint relative to the defendant the Metropolitan Elevated Railway Company were those which charged upon it a connection with the construction, maintenance, and operation of the railway. No amendment of the . complaint was asked for or granted upon the trial. The allegations of the complaint with respect to the Metropolitan ' Elevated Railway Company are directly negatived by the findings of the court. The only ground upon which it can possibly be claimed that the Metropolitan Elevated Railway Company should be enjoined from maintaining a railroad which it does not own and in which it never had any interest, is that it threatens or intends to take part in the maintenance or operation of the railway complained of. This is not alleged in the complaint, nor has the trial judge found it to be .true. It therefore follows that the judgment must be reversed in both actions as to the defendant The Metropolitan Elevated Railway Company *(Kane*v. *Metropolitan El. R. Co, 25*N. Y. St. Rep. 587), with costs of appeal andan equitable proportion of the disbursements.

It is claimed on the part of the appellants that the court erred in allowing witnesses to testify what in their judgment-" would be the value of the premises in question if the elevated railroad had not been constructed, and that the opinion of the Court of Appeals in *Mc Gean*v. *Manhattan R. Co.*condemns the admission of such testimony. But as was well said in that case, and the remark is equally applicable to the present; “ The trial seems-to have been conducted on both sides, and more particularly on that of the defendant, upon the theory that opinions were admissible as to rental value of the premises and.causes which affected it.” The fact is that for a long time, in nearly all of these damage cases, such testimony was admitted both as to the rental and fee value, although it must *67be conceded that it was very unsatisfactory, and could aid the court but little in arriving at a conclusion upon the damages to any particular piece of property; but we do not see how the admission of such evidence, especially when it was admitted on both sides, could have worked an injustice to the defendants.

Appellants also contend that the court erred in rejecting the testimony of a witness named Mayer as to what rent he paid for certain premises in Water Street. The defendant, we think, had not laid sufficient foundation for this testimony ; it had not been shown under what circumstances he occupied the premises in Water Street or why the landlord was induced to receive for such premises the rent he did.

The other objections to the admission or exclusion of evidence we do not regard as materially affecting the result in these actions. ■ ■

The appellants also contend- earnestly that none of the plaintiffs should be allowed to maintain these actions, because they, as abutting owners upon Pearl Street, had no fee in that street, and consequently could not have been deprived of any property right by reason of the construction of the railroad complained of; also, that the plaintiffs in the second action, being remainder-men only, could not maintain an action in equity to restrain the operation of defendants’ railroad. The learned Chief Judge who tried these cases overruled both objections, and we think in his opinion has clearly established the right of the plaintiffs in both actions to maintain the same, and also laid down the proper rule by which to determine how the damage should be apportioned between the tenant by curtesy and the remainder-man.

But the amount which he fixed for the total damages to the premises, to wit, $25,000, seems to us excessive. The property is situated on the southeast corner of Pearl and Pine Streets, with a frontage on the former of 27 ft. 7 in., and a depth on the latter of 47 ft. 3 in., making altogether about 1,320 square feet, or a little more than half an ordinary city lot. . From 1868 to 1870 this property let for $5,350; *68for the year 1870-71 it.let* for $3,350 only, and the reason assigned in the testimony for the diminution in this year was the fact that the -first floor was unlet; for the year 1871-72, being the year before the panic, the entire property let for $4,250, and this it-continued to produce until 1875-76. The testimony does not clearly show the cause of this reduction in the rent, but it was- long before the erection of the elevated railroad, and shows-a-loss in the rents from 1868-69 of over twenty per cent., which could in. no way be attributed to the actual or threatened construction • of the elevated railroad, nor even to the panic, for the reduction took place before that had'set in. • For the year 1876-77, being the year immediately prior to the construction of the elevated railroad, the entire property, let for $3,900. After the ■ elevated railroad went into- operation, the rents have varied somewhat, but averaged between $2,800 and $2,900 per annum,- and amounting to. about $3,000 when the building was fully occupied. Now if we allow ten per cent, as the ratio between the rental and fee value of the premises in 1868-69, the property then was worth $50,000, and this is what the experts with considerable unanimity fix the price at; while allowing the same ratio for 1871-2 would make the value of the premises $42,500, due to some other cause or causes than the effect of the panic or the building of the road. The reduction from $4,250 to. $3,900 would clearly be attributable to the effect of the panic, and that alone. The subsequent reduction from $3,900 to $3,000 may be fairly attributed to the effect of the construction and operation of the elevated railroad, and allowing the same ratio of ten per cent, would show that the damage to the fee value caused by the road simply, would be $9,000 only, leaving out of view any natural appreciation of the property arising from the general increase of values in this city. ■ But the witnesses both for plaintiff and defendant testify that the present ratio between rental and fee value varies from seven to nine per cent.; if we take an average of eight per cent., then the damage to the fee value would be $7,200, which w'ould represent the- actual *69damage to the property, were we not: to take into consideration the general • appreciation of values. Exactly what this appreciation is, however, is very hard to determine, from the nature of things, and especially from, the evidence in this case. The building is all the while growing older and needing repair, while the ground is appreciating in value. We think that this appreciation cannot be more than seven or eight thousand dollars, and that fifteen thousand dollars woul'd fully cover all the damages to filies fee in both of these cases, and that, therefore, the judgments'in each case should be reversed and a new trial had, unless the plaintiffs in each case will stipulate to reduce their judgments proportionately ; and if this stipulation is given, the judgments should be affirmed for the reduced amount as to , the-, defendants other than the Metropolitan Elevated Railroad Company, without costs. ...

Bischoef, J., concurred.

Judgment accordingly.