Roberts v. New York El. Ry. Co.

• Decision Date: 20 October 1891
• Citation: 128 N.Y. 455,28 N.E. 486
• Parties: ROBERTS v. NEW YORK EL. RY. CO. et al.
• Court: New York Court of Appeals Court of Appeals

128 N.Y. 455

28 N.E. 486

ROBERTS

v.NEW YORK EL. RY. CO. et al.

Court of Appeals of New York.

Oct. 20, 1891.

Appeal from superior court of New York city, general term.

Action by Edward Roberts against the New York Elevated Railway Company and the Manhattan Railway Company. There was a judgment for plaintiff, and defendants appeal. Reversed.

Brainard Tolles, for appellants.

Henry H. Man, for respondent.

PECKHAM, J.

The principal question in this case is in regard to the admissibility of the opinions of experts in reference to the amount of damages sustained by the plaintiff by reason of injury to his easements of light, air, and access to his property in Third avenue, in the city of New York, caused by the building and operation of the defendants' railroad. As the question is one of considerable importance, and arises in each one of this class of cases, and as the number of such cases tried and to be tried is, as we understand, very large, a critical examination of the question is called for. It will be well to have a clear view of the facts existing at the time that the questions in controversy were put to the witness, so that we may determine understandingly the precise point in issue.

It appears that the plaintiff, in November, 1852, became the owner in fee of the premises in question, which consisted originally of six lots on the east side of Third avenue and on the south side of Ninety-Ninth street, but the plaintiff subsequently sold some, leaving himself with a frountage of about 100 feet on Third avenue, and about 110 feet in depth. These lots cost the plaintiff about $500 apiece at the time he purchased them; at which time they were vacant, and they so remained until 1865, when the plaintiff leased them for $150 per year. The tenant erected a house upon the corner lot, with a stable, which buildings were destroyed by fire about 1877, at which time the tenant gave up his lease, and the lots remained vacant until 1881. In the mean time the plaintiff filled them in, and graded them. Before filling in, the premises formed a portion of a marsh or swamp over which the tide ebbed and flowed. In 1881 the plaintiff sold these lots under a contract for $40,000, and the purchaser commenced the erection thereon of the present buildings, five in number, four of which front on Third avenue and the fifth on Ninety-Ninth street, each house being four stories high, constructed of brick with brown stone trimmings. The buildings are about 47 feet front elevation and 65 feet deep, and cost about $11,000 each. The purchaser had them substantially inclosed and the plastering nearly completed in the spring of 1883, when the plaintiff foreclosed his liens thereon and took them from him, and completed them, so that they were ready for occupancy in the fall of the year 1883. Since the month of October, 1883, the buildings have been leased to tenants, and the rents actually collected from the Third avenue buildings from January 1, 1884, to January 1, 1889, have been from one house and lot, $7,053; from the second, $6,129.11; from the third, $7,554.50; and from the fourth, $7,541.66. The defendants' railroad was constructed in Third avenue in front of plaintiff's lots in the year 1878, and was put in operation in December of that year. The plaintiff in his complaint alleged that the building of the railroad was unlawful, and that the unlawful construction thereof interfered with his access to his premises, and impaired his easement in the street or avenue by depriving him of a large portion of light and air, and of facility of access to them, in the amount of $75,000, and that by reason of the maintaining and operation and managing of defendants' railways the value and the use and enjoyment of his premises, he alleged, had been depreciated and diminished to the amount of $5,000 per annum. He demanded judgment against the defendants, restraining them from operating their road though Third avenue in front of his premises, and also from continuing the unlawful acts set forth in his complaint; and he asked that the damages he had sustained down to the commencement and during the pendency of this action be adjusted by the court, and that he might have judgment therefor against the defendants, and each of them, and that he might have such other relief as should be just and equitable. The defendants joined issue with the plaintiff in regard to many of his allegations, and set up that the defendants were organized under the laws of the state of New York, granting them the right to use the street in question for the purpose of building their railroad, and that they had built it and equipped it, and used and operated it, under such acts of the legislature, and in the most careful and skillful manner in which it was possible to construct, use, and operate the same in the street mentioned in the complaint.

Upon the trial of the action the plaintiff was a witness, and after stating the condition of the premises, and the fact that he had erected or caused to be erected buildings upon them at an expense of about $11,000 each, he said that he had offered the whole premises for sale, including the house on Ninety-Ninth street, about two years previous, which would have been in the fall of 1887, for the sum of $105,000, and that in his judgment that was a fair price for them. Here is certainly a very large appreciation in value over the original cost. Would it have been as much if the railroad had not been built? It will be seen that the present buildings were not erected until some two years after the building of the road had been completed, and the operation thereof commenced. Whether the value of the property would have been still greater without the road than it now is with it, was the fact to be found by the court. Upon the trial a witness was called on behalf of the plaintiff, and testified that he was a realestate broker, and had carried on that occupation in the city of New York for 28 years; his transactions had extended throughout the whole city, and had involved both leasing and selling; that he knew the property in question, and was familiar with the value of that property, and of the property in the neighborhood; that he had made an examination of the property with a view of seeing what the physical effects to the abutting property were, produced by the railroad and its trains, commencing at least six months ago, on four or five different occasions; that he had given special attention to the effect upon abutting property produced by the elevated railroad, and the passing of its trains; that he had been examined a large number of times as a witness on the subject, and in reference to property scattered all over the city; that he had made it his business to be familiar not only with the selling but the rental values of property along Third avenue since the railroad came there; that he had informed himself about such transactions, not only in reference to this property, but other property; that, so far as experience from personal transactions was concerned, he had none in that vicinity since the building of the railroad, in renting or in selling; that he had been engaged by property owners for the last three years to make examinations and testify as an expert witness, and it had been a considerable part of his business, and in every case in which he had testified he had testified against the railroad company; that he was paid $100 to come and give these opinions; he did not know but that the property at the upper end of Third avenue had been benefited to some extent; his opinion was that rapid transit had helped Harlem; that the building up of the upper end of Harlem had been due to the growth and filling up of all the cross-streets; that the growth and filling up of the cross-streets had been due to the rapid transit afforded by the elevated railroad in large part. The following question was put to him. ‘To what extent, if at all, in your judgment, is the value of Mr. Roberts' four buildings on the Third avenue-excluding from consideration the house on 99th street-to what extent, in your judgment, is the value of that property damaged, if at all, by the presence of the structure and the running of the trains?’ Under objection and exception the answer was permitted, and the witness stated that the diminution extended from about $110,000 to $80,000, including the loss to the fee value simply. The court then said: ‘That is, you think that the four houses fronting on Third avenue are worth $80,000 now?’ Witness: ‘Yes, sir.’ Court: ‘And that they would be worth $110,000 if the structure and road were not there?’ Witness: ‘Yes, sir.’ Question. ‘What do you estimate the rental value of the property to be, the railroad not being there? I refer to the Third-Avenue front only.’ Same objection and exception. Answer: ‘$9,000.’ Q. ‘And with the railroad there?’ A. ‘$6,400; as collectible rents, I mean.’

Upon this appeal, the question is: Were these objections of the defendant properly overruled? By resorting to a court of equity, and seeking the aid of such court to prevent the operation of the defendant's road until all his damages consequent upon the illegal construction of its road in front of his premises have been paid once for all, the plaintiff has brought before the court the question, what were the damages to the fee of the premises owned by him, consequent upon this wrongful act of the defendant? The amount of damages thus caused to plaintiff's fee is the precise question which the court or jury must determine, and for such amount the court gives judgment, upon condition of the plaintiff executing a deed to the defendant of the property wrongfully taken or interfered with by it.

The first question asked of this witness, to which exception is taken, as above noted, calls for his opinion as to the amount of such damage; and the second question is of substantially the same nature, except that it refers to the injury to...