Woolsey v. New York Elevated Railroad

134 N.Y. 323, 47 N.Y. St. Rep. 633

• Court: New York Court of Appeals
• Decided: October 1, 1892
• Status: Published

Opinions

Follett, Ch. J.

The appellants insist that the court erred in permitting the plaintiffs to recover for the diminished rental value of the premises occasioned by the maintenance and operation of the defendants’ road, instead of the diminished value of the premises for the purposes for which they had been used since the road was constructed. The evidence shows that the building, Eo. 26 Front street, had been used, ever since the elevated road was opened, as a warehouse for storage and packing of flour by the plaintiff personally—it never having been rented or offered for rent. The plaintiff was permitted on the trial to give evidence of the rental value with and without the road, to which evidence the defendants objected on the ground that it was incompetent, irrelevant, immaterial and not the proper measure of damages, but the defendants did not suggest that the proper rule of damages was how much the premises were injured for the particular purposes for which they have been used. The defendants called three witnesses who gave evidence of how the rental value was affected by the road, but they offered no evidence as to the amount of damages occasioned to the premises for the particular purpose for which they had been used. The case was evidently tried by both sides upon the theory that the diminished'rental value was the measure of past damages. The question now sought to be argued was not raised at the trial, but the appellants insist that it was raised by the seventeenth request which the court refused t) find, which was in fact supported by the uncontradicted evidence of the plaintiffs. The following is the request:

“ Seventeenth. That since the time the said elevated railroad was constructed, and for many years prior thereto the said building had been occupied by the plaintiff Theodoras B. Woolsey, for the purposes of his business as a dealer in flour and for the storage and manipulation of flour.”

We do not think that this request, or any of the other requests, called the attention of the court to the rule of damages which the defendants now assert should have been applied to the case and the question which they seek to argue is not before the court.

It is also urged that the court erred in refusing to direct that an injunction should only become effective in case the defendants failed to acquire the easements by condemnation. The road was built through Front street in June, 1878. The plaintiff testified, and in this he was uncontradicted, that before this action was begun, he requested the defendants to condemn the easements. May 13,1887, this action was begun, and May 15, 1888, a notice of motion for the appointment of commissioners in proceedings to condemn the easements was served, and October 25, 1888, the next day after the trial of this action was begun, the commissioners were appointed. After this action was tried the parties by stipulation asked the court to find the value of the property taken so that an injunction could be avoided by payment of the amount so found. Under this state of facts the court did not err in awarding an injunction.

On the 16th of July, 1885, the plaintiff, Theodoras B. Woolsey, gave a mortgage on the property to James Benwyck, executor, etc., to secure the payment of $10,000, which was' duly recorded and at the time of the trial was unpaid. The judgment does not provide for the release of this mortgage from the rights to be conveyed by the plaintiffs to the defendants upon the payment of the fee damages, which was asked by the defendants but not granted. This was error.

The judgment should be modified by requiring the plaintiffs to tender with their deed of release of the rights and easements, a discharge of this mortgage from the rights and easements so to be conveyed by the plaintiffs to defendants, and as so modified, the judgment should be affirmed without costs to either party.

Opinion on reargument:

Landon, J.

The trial court refused to find that the plaintiff, during the time in question, occupied and used his building as a dealer in flour, and for its storage and manipulation. The evidence required such finding, if it was material to the question of damages. There was evidence tending to show a substantial impairment of the actual rental value of the plaintiff’s premises, caused by the acts of the defendants, but there was none tending to show any special injury to the plaintiff’s flour business. The defendants thence contend that there was no evidence to support the finding that plaintiff’s past damages were $350 per year, and that if the finding requested had been made, it must thence have been inferred that the nlaintiff suffered no loss.

The defendants’ position in effect is, we did, it is true, impair the actual or marketable value of the plaintiff’s premises for six years, but lie can recover nothing, because he did not offer his premises for rent, but used them himself in his own business, and has not proved, in respect of that business, that our acts occasioned him any loss or damage.

We do not tliinlc the defendants’ position tenable.

The past damages which the plaintiff was entitled to recover were measurable by the amount which the rental or usable value of the plaintiff’s premises had been diminished by the construction, maintenance and operation of the defendants’ railway. (Tallman’s Case. 121 N. Y. 119; Lawrence's Case, 126 id. 483.)

The Tollman case is supposed by the defendants to support their contention, but it states the rule as above. In that case the plaintiff was seeking to recover damages in excess of the impairment of the actual rental value of his premises, by recourse to the possible or imaginary rental value in case he had built houses upon them at a supposable cost and had rented them at a supposable rent. The court held that he must rely upon the actual rental or usable value. lie could take his choice between the rental or usable value as his premises actually were, whichever was most profitable to him. The defendants in the present case seem to think that, for the purpose of diminishing the damages, they can take their choice between the actual rental or usable value of the premises as they were actually used. The case affords no warrant for such a position. The defendants were wrongdoers and must pay full compensation for the wrong done by them. Suppose the plaintiff’s lot was vacant, neither used nor rented, but was rent-able. If the defendants seized and held it for six years without the plaintiff’s consent, they would clearly be liable for its rental value. Suppose they wrongfully seized and appropriated, for six years before making condensation, its easements of light, air and access, and thus impaired its rental value; the difference in the cases would be in degree, but not in kind, and the defendants would still be liable, irrespective of the fact that the plaintiff had not sought to put the lot to any use. The Lawrence case, above cited, is authority to the effect that extra rent derived by the plaintiff from tenants who put his building to improper uses, though practically compensating him for the impairment by the wrongful acts of the defendants of the rental value of his premises, did not inure to their relief. That case touches the principle involved in this. It is none of the defendants’ concern whether plaintiff realizes from his premises the rent the market affords him, or foregoes it for the sake of a special business which he may choose to manage, however small or unprofitable. Seventh Ward Nat. Bank v. N. Y. El. R. R. Co. (21 J. & S. 412-418) seems to be an authority for plaintiff’s contention, but the rule there stated was held inapplicable to a case like the present, in Kearney's case (14 N. Y. S. R. 854, affirmed 129 N. Y. 76), without discussing the point.

We do not regard it as applicable to the case before us. Greene v. N. Y. C. & H. R. R. R. Co. (12 Abb. [N. C.] 124) is cited with approval in TallmamJs case. It is there held that the impairment of the rental value may be determined with reference to the uses to which the premises could have been put in the condition they were in. These premises could have been put to rent.

As the plaintiff elected to rely upon the rental instead of the usable value of his premises, it was not error to refuse to find how he used them.

I advise an affirmance of the judgment.