Mooney v. New York Elevated Railroad

22 N.Y.S. 795, 52 N.Y. St. Rep. 256

• Court: New York Court of Common Pleas
• Decided: April 10, 1893
• Status: Published

Opinion

DALY, O. J.

The judgment will have to be reversed for error in the refusal of the referee to find, as fact, that the easements pertaining to the plaintiff’s land, taken for the uses of the railroad, aside from any damage to the land from the said taking, have in themselves only a nominal value. Bookman v. Railroad Co., (N. Y. App.) 33 N. E. Rep. 333; Sutro v. Railway Co., Id. 334. The exception to this finding has been discussed in the Gases of Cook (22 N. Y. Supp. 790,) and Kahn (Id. 793,) against the same defendants, herewith decided. The observations which we have made in the Kahn Case, above referred to, apply equally to the case before us, so far as the questions of fact are concerned. The plaintiff here furnished evidence of the rentals obtained from the property before and after the construction and operation of the defendants’ road. While the testimony as to prior rentals does not fix with certainty the year in which those rentals were received, still there was a basis for a competent conclusion that the plaintiff had been actually damaged by a diminution of rentals, traceable to the elevated railroad, and by a loss of fee value, as indicated by the depreciation of rents, and that the railroad had not been of the slightest benefit to her property. The estimate which the referee placed upon damages to the fee value and to the rental value were by no means extravagant, and appear to be justified by the evidence; but for the error pointed out a new trial must be granted. Judgment reversed, new trial ordered, with costs to abide the event. All concur.