#### Eliza Jane Moore, Appl’t, *v.*The New York Elevated R. R. Co. and The Manhattan R. Co., Resp’ts.

*(New York Common Pleas, General Term,*

*Filed February 3, 1890.)*

1. Railroads—Damages—Charge.

In an action for damages to rental value caused by the operation of an elevated railroad the average rental from 1869 to 1877, and that from 1882 to the time of the trial was shown. The defense showed that this street, had been a stand for farmers by reason whereof the trade in produce became centered there and that such trade was removed in 1879 to another place and rents therefore fell off. *Held,*that the court properly left it to the jury to say whether the difference in the rent of the property in question was caused by the operation of the road or by the removal of such trade from the street.

3. Same.

The court withheld from the consideration of the jury the elements of noise and privacy. *Held,*that as the jury allowed nothing for the greater-injuries of deprivation of air, light and access, they would not, in any event, have awarded damages for these lesser evils and therefore plaintiff was not prejudiced.

3. Same—Evidence.

A question put to one of plaintiff’s tenants whether the reason of his: leaving the premises was in any way connected with the effect produced by the operation of the road, was excluded. *Held,*no error, as it called, for a conclusion as to the reason of his doing a certain act, which could have been proved by other methods.

Appeal from a judgment entered upon the verdict of a jury in favor of the defendants and against the plaintiff after a trial of the issues, and from an order denying plaintiff’s motion to. set aside the verdict upon the usual grounds.

*Chas. JE. Whitehead*and *Stanley W.*Dexter, for app’lt; *Chas.. ,A. Gardiner*and *Brainard*Tolies, for resp’ts.

*433Bookstayee, J.

This is an action to recover damages for the maintenance and operation of the defendants’ elevated road in front of premises 371 Greenwich street, in which the plaintiff •has a life interest. The trial judge charged the jury that the defendants were required to make compensation to the plaintiff for the difference, if any, in the rental value of her property due to interference with light, air and access of the same by the maintenance and operation of defendants’ railroad.

The only question submitted to the jury was one of damages. On the part of the plaintiff it was shown that from 1869 to 1877 the average rental of the building was $2,200 per year, the tenant to make repair’s, whereas from 1882 to the date of the trial the rent had averaged about $1,600 per year, the landlord to make the repairs. The elevated railroad was there during a portion of the first period, and there is no evidence that trains ran with greater frequency or that any greater burden was imposed upon adjoining property in the one period than in the other.

On the part of the defendants it is shown that this portion of Greenwich street, from 1870 to 1879, was a stand for Long Island farmers, who came into town in the early morning to sell their produce, and that grocers came down to this place to buy of them, by reason of which the trade in produce and groceries became centered in this locality; and that between 1879 and 1880 this trade was removed to Gansevoort market, and in consequence of this-removal rents in that locality, especially of basements and sidewalk privileges, fell off considerably. The court left it to the jury to say whether the difference in the rent of this property was due to the cause contended for by the plaintiff, or to the cause contended for by the defendant, and we do not think there is any error in the charge of the court in this respect.

We also think that the exception taken to that portion of the charge which said that the change in the character of the neighborhood, directly or indirectly attributable to the operation of the elevated railroad, cannot be taken into consideration as causing damages for which plaintiff may recover, is untenable. This portion of the charge is in exact accordance with the law as laid down in this court for many years. *William W. Thompson*v. *N. Y. Elevated R. R Co. et al.,*Equity Term, April 1889; 24 N. Y. State Rep., 498; *Pell Thompson et al.,*v. *N. Y. Elevated R. Co. et al.,*idem; *Meyer*v. *Met. El. R. R. Co.,*general term, January, 1886, MS. Opinion. See, also, *Greene v. N. Y. C. & H. R. R. R. Co.,*65 How. Pr., 154.

It is true that this court has, at general term, decided in the case-of *Kane*v. *Metropolitan Railway*Co.,25 N. Y. State Rep., 587, that noise is an element of damage to be considered by the jury, and such decision is binding upon us, but we think it is clear that withholding this element from the consideration of the jury, and also the element of privacy, could have had no effect upon the minds of the jury; for it is apparent that the deprivation of air, light and access must be a greater injury to the premises in ques*434tian than either noise or privacy, and the jury allowed nothing whatever for these greater injuries, if any, and therefore would, not in any event have awarded damages for the lesser evils.

The only other question to be considered is an exception to the ■exclusion of the following question: “Was the reason of your going away from there in any way connected with the effect produced by the operation of the road.’’ This was excluded under defendants’ objection. The question called for the conclusion of the witness as the reason for doing a certain act, and we think was clearly incompetent, as the motive of a witness in performing an .act can only be given in evidence when there is no other method of proving it. In this case we think there was, and that, therefore, the objection is untenable.

The judgment should be affirmed, with costs.

Bischoff, J, concurs.