(78 Hun, 450.)

#### WRIGHT et al. v. NEW YORK EL. R. CO. et al.

(Supreme Court, General Term, First Department.

May 18, 1894.)

1. Elevated Railroad—Injuries to Abutters—Evidence.

In an action for injuries to abutting premises caused by operating an elevated railroad, a finding that the trespass committed by defendants damaged plaintiff in a certain sum per year is not sustained by evidence merely that the occupants of the premises were annoyed by the dust, cinders, smoke, etc., without evidence that the rental value of the premises was diminished.

3. Same—Judgment.

Judgment that defendants be enjoined from operating their elevated railroad unless they pay a certain sum on receiving a conveyance of the easements appurtenant to plaintiff’s premises is inequitable where it appears that part of the title is held by infants, and no one has been authorized to convey their interests.

Appeal from special term, New York county.

Action by John Dunbar Wright, Mary B. Corlies, Annie A. Mason, Henry Coolidge, and Howard K. Coolidge, Sarah W. Coolidge, and George G. Coolidge, by their guardian, Henry Coolidge, against the New York Elevated Railroad Company, the Metropolitan Elevated Railway Company, and the Manhattan Railway Company for an injunction and damages to plaintiffs’ premises known as ‘‘No. 304 Pearl Street.” From a judgment awarding plaintiffs §2,550 for trespass on the street easements appurtenant to plaintiffs’ premises, and restraining the operation of defendants’ railroad unless defendants pay §6,000 for conveyance of easements taken and impaired by them, defendants appeal.

Reversed.

For more than 30 years prior to March 20, 1879, James B. Wright was the owner in fee of No. 304 Pearl street, on which date he died, having devised the premises in fee to Mary D. Corlies, Carrie L. Coolidge, Annie A. Mason, and John Dunbar Wright, each taking an undivided one-fourth, interest On May 8, 1889, Carrie L. Coolidge died intestate, leaving, her surviving, Henry Coolidge, her husband, and three children, Howard K. Coolidge, Sallie *224OooMge, and George G. Ooolidge, her only heirs, who are minors. No administrator has been appointed for her estate. The lot is situate on the east :side of Pearl street, and is 22 feet and 5 inches wide on the street, and a ■little more than 95 feet in depth. It is bounded on the west by Pearl street, the fee of which street is not in the plaintiffs. The lot is occupied by a four-story brick building 51 feet deep, which was erected about 90 years ago, and a one-story extension covering the rear of the lot. These premises are subject to two mortgages,—one for $3,166.66, owned by Caroline E. Weaver, and one for $600, owned by Phoebe 0. Wright. The construction of the elevated road in Pearl street was begun in 1877, and was completed and put in operation in August, 1880. This action was brought to recover damages for the trespasses upon the street easements since January 9, 1885, and for a judgment restraining future trespasses. The damages for the past trespasses were assessed at $300 per year from January 9, 1885, to June 6, 1893,—the •date of the trial,—amounting to $2,550, and the value of the easements taken was assessed at $6,000, and the usual alternative judgment was entered.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, •JJ.

Davies, Short & Townsend, for appellants.

George Zabriskie, for respondents.

FOLLETT, J.

The plaintiffs are simply abutting owners, having no title to, or interest in, the bed of the street, nor any private rights therein, except such as are incident to a lot abutting on a public street. The defendants insist that there is no evidence tending to sustain the finding (thirteenth) that the trespasses committed by the defendants before the trial damaged the plaintiffs to the amount of $300 per year, and they also insist that, if there is any ■evidence tending to sustain this finding, it is altogether against the weight of the evidence: The measure or rule for ascertaining the ■amount which abutting owners are entitled to recover for trespasses committed by the elevated roads on street easements has been held in many cases to be the diminished rental value of the abutting premises caused by the trespasses. The amount of rent received before the trespasses were committed, and while they were being ■committed, is competent and persuasive evidence upon the issue ■of the amount of damages sustained, but the difference between these sums is not conclusive proof of the extent of the injury sustained.- It may be that, during the time when the acts complained of were committed, the premises were not rented, or they may have been let for a nominal sum, or for a sum much more, or much less, than their actual rental value. The real issue is not how much less the abutting owner has actually received for the rent of the premises, but it is, how much has the rental value of the property been diminished by the trespasses ? In determining this question the benefits, if any, to the premises, occasioned by the construction and operation of the road, must be taken into account. In the ■case at bar the plaintiffs’ premises have been continually leased to the Hale Chair Company for *25*or 30 years before the trial of this .action, and were occupied by that corporation as a chair store. During the 15 years immediately preceding the trial—1878 to 1893— the corporation (the lessee) paid an annual rental of $1,200 to $1,400. From 1878 to 1881 the annual rental was $1,200. The rent for *2251882 is not stated, except it appears that it was not less than $1,200, nor more than $1,400. Since 1882 the rent has been $1,400 per year. So it appears that the plaintiffs have not received a less rent since the road was put in operation than before. The learned counsel for the defendants urges that this is proof that the plaintiffs were not injured by the trespasses complained of, and that at most they are entitled to but nominal damages. We do not think that this conclusion necessarily follows from the evidence. It may be that, had the road not been built and operated in front of the plaintiffs’ premises, their rental value would have been more than $1,400 per year. One of the occupants of the premises testified that they were annoyed by the dust, cinders, and smoke that came from the road, and that the light was interrupted by the structure and by the moving trains; but aside from this-evidence we find none in the record which shows, or tends to show, how much the real rental value of these premises was diminished between January 9, 1885, -and June 6, 1893, by the trespasses of the defendants. No witness testified that the rental value of these premises was diminished by the operation of the road, and we think that the thirteenth finding is contrary to the weight of the evidence.

The judgment provides that an injunction restraining the operation of the road shall issue within 60 days after the entry of the judgment, unless the defendants pay $6,000 on receiving a conveyance from the plaintiffs of the easements. It is true that the defendants are not bound to pay the sum fixed, but may acquire the property by condemnation; yet this provision should be formulated and founded upon equitable principles. American Bank-Note Co. v. New York El. R. Co., 129 N. Y. 252, 29 N. E. 302; Blumenthal v. Railroad Co., 60 N. Y. Super. Ct. 95. One-fourth of the title is held by infants, which cannot be conveyed except by a special guardian, ■duly authorized by the court in a special proceeding instituted for that purpose. This provision, in its present form, is inequitable. It might have been provided that an injunction issue unless the defendants pay the sum fixed on being tendered a valid conveyance ■of the title within the time mentioned, or that an injunction issue unless the defendants acquired” the title by condemnation within the time mentioned. .

The point is urged that the plaintiffs are not entitled to recover more than three-fourths of the damages which accrued prior to May 6, 1889,—the date of the death of Mrs. Coolidge; but it was not taken on the trial, and need not be considered, as it will undoubtedly be obviated on the retrial. The judgment should be reversed, and a new trial granted, with costs to the appellants to abide the event. All concur.