Powers v. City of New York

187 A.D. 896

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1919
• Status: Published

Opinion

Judgment reversed and new trial granted, with costs to appellants to abide the event, because of error in refusals to find as requested by defendants, that in arriving at the amount of fee damage the court had not considered noise or vibration, interference with privacy or unsightliness of the structure. In view of the substantial award of fee and rental damages in this case as compared with the nominal award for similar property similarly situated at the adjoining corner of Forty-ninth street and New Utrecht avenue, affirmed by this court (Bakerman v. City of New York, 186 App. Div. 907), there should be no confusion as to the theory upon which the learned trial judge reached his conclusion as to the damages awarded. The elements of unsightliness, interference with privacy, noise and vibration are not properly considered on the question of fee damage. (American Bank Note Co. v. N. Y. E. R. R. Co., 129 N. Y. 252; Bischoff v. N. Y. E. R. R. Co., 138 id. 257; Matter of Brooklyn Union Elevated Railroad Co., 113 App. Div. 817; affd., 188 N. Y. 553; Messenger v. M. R. Co., 129 id. 502.) The evidence of damage to rental value was not sufficient to justify the award made by the learned trial judge. Jenks, P. J., Putnam and Kelly, JJ., concurred; Mills and Rich, JJ., concurred in the result.