The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-11-28
TO SUBWAY DAMAGE, $4,000.
EX-TUDGE PARKER ASSESSES
PARK AVENUE LOSSES.

TO InXFhG3 He hMfthSyp AAhAu III
Undermining Of His House, He Awards
sos. OOO-Tctal Demands More Than
$500, OOO-sOme Claimants still Suing.
Ex-Judge Alton B. Parker, as referee,
has fled with the Appellate Division OF
he Supreme Court a report holding that
the city should pay ti9e.o27 In damages
To the property owners whose houses were
damaged in March, 1900, by the land slip
at Park avenue and Thirty-eighth street.
The trouble was due to the tunnelling
for the subway. There had been a change
In the plans Of the construction work.
| and the tunnel came too close to the bunda-
ton line Of the abutting houses.
The chief claimant was Charles T. Barney.
whose house at OF Park avenue was al
most wrecked and had to be shored up.
His claim against the city footed up to
$3.50 ,i4s. Judge Parker in his report cuts
this to sos ,a25.
The claims against the city footed up
to November, sos 900, but some Of them
were withdrawn from consideration, the
claimants preferring to rely on an action
at law, rather han on the findings OF the
referee. Judge Parker was designated,
on the application of the Rapid Transit
Board, to inquire into and report on the
validity Of the claims.
The awards follow: -
Mrs. Arsbeiln {. Huntington, es Park av... lLioe
9. 7. Barney. 81 Park avenue. .,......,.,... $685.
| Alice r. Wheelock. rs PARK avenue. .,...... eli
Alice T. Wheelock and NJ. A. Kemeys. 49,.
Benjamin Weiies and other executors.
li Park avenue. 27'4SN
Total Ne9.627
The claims withdrawn from the referees
hands were: Manhattan Eve, Ear and
Throat Hospital, s19,6s9: Edwin Parsons
and others as executors, for damage 70
Hogan, for damage to ss. ssl 600; Maude A.
Banks, at 50. ss,5O7: Emily A. Lawrence at
81, 81 $50, and A. NJ. Fraser, at 81, $500.
In his report Judge Parker says that
undoubtedly all the AUDITING houses wer 9
more or less damaged by the subway, but
he CONSTITUTES the order OF the Court to en-
power him to determine only what special
damages were caused by the actual con-
struction, and not what were caused by the
operation of the subway. He divides the
basis OF estimate ng damage into seven
heads, namely:
Cost Of assuring the safety OF the building.
meaning the reasonable expense Of getting ex-
pert building advice.
Actual cost Of repairing injury to building.
which include wall and foundation work.
Cost OF proposed and necessary repairs.
Loss of rental or depreciation in usable value
Of premises.
Claims Of owners for personal sufferings.
Legal expenses.
Mr.. Barney demanded $50, 900 for -nter-
ference with health, comfort and peaceable
enjoyment" Judge Parker struck out this
whole claim. In the matter OF legal ex-
penses Judge Parker also declines to COM
pensate any of the claimants.
One item on which the claimants de-
feated the city was in reference to the stoops
in front of the houses, most OF which were
destroyed by the landslp. Edward M.
Shepard, counsel for the Rapid Transit
Board, commended hat stoops existed only
by a special license from the city, and were
not an integral part Of the house, as they
were really on city property and could be
condemned in a proper proceeding to
change a street,
Mr.. Barney's stoop n portioo was an
elaborate affair, with two costly support
ing pillars. To replace II would cost sl4 1870.
and Mr.. Barney demanded the full mount
Judge Parker arrives at the conclusion hat
the city is responsible for damage to the
stoops. No such notice was given when
the stoops collapsed through the acts OF
the city's employees in March, 1902.
Mrs. Huntington made no repairs what
ever, and the house remains in its damaged
condition. AS Mr.. Devoe's repairs were
all completed by July, 1904, Judge Parker
holds that the other claimants could have
put their houses IN good order again by
that time, and therefore declines to allow
any claim for a loss of rental or use Of the
house after July, 1904. Hence Mrs. Hunt
ington gets only S., 1856 for rental, n $40, TIA
for damage to the stoop and house.
In Mr.. Barney's case an interesting
question was raised by the Rapid Transit
Board. Mr.. Barney was a director of the
Rapid Transit Subway Construction Com
pany, which built the tunne in front of
his, house, and Mr.. Shepard urged that as
it is the duty of directors to direct Mr..
Barney should be presumed to nave done
his duty and to have given his approval
to the change in the route of the tunnel
which brought about the collapse of his
own house.
Judge Parker says that IL it could be
shown that Mr.. Barney by his vote and action
had directly contributed to the change of
route, a very interesting point would be
presented. He adds:
But it is not established as a fact and
l am quite confident that there is no au-
thority in the courts to indulge in the pre-
SYMPTOMS required to treat it as a fact.
Boards of directors do not always act as
one man; they are frequently divided, and
with knowledge of that general fact the
Court should hesitate before indulging in
a presumption to the contrary that would
visit a director with such serious loss"