#### William W. Thompson, Resp’t, *v.*The Manhattan R. Co. *et*al., App’lts. Pell Thompson *et*al., Resp’ts, *v.*The Manhattan R. Co. *et al.,*App’lts.

*(New York Common Pleas, General Term,*

*Filed February 10, 1890.)*

1. Trespass—Evidence—Opinions as to value.

In an action for injunction and damages against an elevated railroad, the admission of the opinions of witnesses as to the value of the adjoining premises is admissible, especially when similar evidence is admitted on both sides.

2. Same.

Evidence of a witness as to what rent he paid for certain premises on that street is properly rejected, where it is not shown under what circumstances he occupied the premises or why the landlord was induced to receive the rent he did.

3. Same—Parties.

Such action may be maintained by abutting owners, although they do not own the fee of the street, or by remaindermen.

4. Same.

Proper mode of computing damages.

Appeals by defendants from judgments in favor of plaintiffs, enjoining the maintenance of an elevated railroad in Pearl street, but providing that on payment of $18,750 the judgment should not be operative.

75 *S. Bapallo*and *Henry B. B. Stapler,*for app’lts; *John A. Weehes, Jr.,*for resp’ts.

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 Clendenen 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 Gf. Thompson and Clendenen 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 *721second, has found that the Metropolitan Elevated Eailway 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 conqfiaint. And in the seventy-first paragraph of its decision in the first action and the seventy-sixth paragraph of its decision in the second action, the court has found that the Metropolitan Elevated Eailway 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 Eailway Company, are those which charged upon it a connection with the construction, maintenance and operation of the railway. ETo amendment of the complaint was asked for or granted upon the trial. The allegations of the complaint with respect to the Metropolitan Elevated Eailway Company are directly negatived by the findings of the court. The only ground upon which it can possibly be claimed that the Metropolitan Elevated Eailway 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 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 Co., *Kane*v. *Metropolitan Elevated Railway*Co., 25 N. Y. State Rep., 587, with costs of appeal and an equitable proportion of the disbursements.

It is claimed on the part of the appellant 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 *McGean*v. *Manhattan Railway Co.*condems 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 be 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 injustice to the defendant.

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 defendants, we think, had not laid sufficient foundation for this testimony; it had not been shown under what circumstances he occupied the premises *722in 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 evidence1 we do not regard as material 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 remaindermen only, could’, not maintain an' action in equity to restrain the operation of defendant’s 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 proportioned between the tenant [by curtesy and the remaindermen.

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 feet 7 inches and a depth on the latter of 47 feet *3*inches, making all together 1320 square feet, or a little more than half of an ordinary city lot. From 1868 to 1870, this property let for $5,350; for the years 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 1871-2, 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 20 percent, 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 years' 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 thep was worth $50,000, and this is what the experts, with considerable unanimity, fixed the price at; while allowing the same ratio for 1871-72, would make the value of the premises $4,250 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 natu*723rai 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 per cent 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 would represent the actual damage to the property, were we not to take into consideration the general appreciation of values. Exactly what this appreciation is, 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 $15,000 would fully cover all the damages to the 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 Railway Go., without costs.

Bischoff, J., concurs.