Levin v. New York El. R. Co.

• Decision Date: 05 February 1901
• Citation: 59 N.E. 261,165 N.Y. 572
• Parties: LEVIN v. NEW YORK EL. R. CO. et al.
• Court: New York Court of Appeals Court of Appeals

165 N.Y. 572

59 N.E. 261

LEVIN

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

Court of Appeals of New York.

Feb. 5, 1901.

Appeal from supreme court, appellate division, First department.

Action by Emma B. Levin against the New York Elevated Railroad Company and others. From a judgment of the appellate division affirming a judgment for plaintiff, defendants appeal. Affirmed.

Edward C. James, for appellants.

J. Aspinwall Hodge, Jr., and Edward B. Whitney, for respondent.

GRAY, J.

This was an equitable action, brought by the plaintiff to restrain the operation of the defendants' elevated railway in Pearl street in the city of New York, in front of her properties, known as Nos. 78 and 80 Wall street and No. 158 Pearl street, unless compensation be made for the appropriation of easements, and wherein she asked for the rental damages sustained in the past. The properties formed the northeast corner of Wall and Pearl streets; the building on the Pearl street lot having been united with the building on the Wall street lots, so as to give a common frontage upon the latter street. The plaintiff recovered, in the usual form of judgment against the defendants, in the alternative, awarding rental damages, and fixing the fee damage or compensation to be paid to avoid the issuance of the injunction, and the judgment was affirmed at the appellate division. Upon this appeal the questions presented concern the finding as to the plaintiff's title and certain exceptions to rulings of the trial judge. The contention as to the title relates to the rear of the lot known as No. 78 Wall street, as to an irregular portion of which it is said that the plaintiff proved no record title, and can, therefore, make no effective conveyance. Prior to the year 1870 there was not shown to be a title of record to this irregular piece of land by metes and bounds; but possession was shown from 1851, when the Seamen's Bank for Savings acquired the property. In that year the building now upon Nos. 78 and 80 Wall street was erected, and when, in 1871, the Seamen's Bank conveyed the property to the Marine Bank, the deed of conveyance included the irregular plot in question by metes and bounds. In the deed to the Seamen's Bank of lot No. 78 in 1851, the description contained this clause: ‘It being intended to convey by these presents all right, title, and interest in and to the said premises as the same are now in possession.’ A diagram in a deed, recorded in the register's office in 1818, was then put in evidence, which showed this irregular piece of land as a portion of No. 78 Wall street. A possessory title was thus shown from 1851, and a record title by metes and bounds from 1871. The defendants commenced the operation of their railway in Pearl street in 1878, and at that time the title to the premises had been one of record for seven years. At the time of the trial and of the rendition of the judgment there had been a continuous possession and occupation by the plaintiff and her predecessors in title of the premises, under a written instrument, for some 47 years, and a record title, by metes and bounds, for some 28 years. In that situation, and under the circumstances, I think the plaintiff was entitled to maintain her action, and that the decree rendered is unassailable upon the ground taken. Gardner v. Heart, 1 N. Y. 528.

The appellants contend that there was error committed by the trial judge in the reception of evidence, upon the cross-examination of the defendants' witness Meyer. Meyer had been examined for the defendants as an expert witness upon realty values, and, upon his cross-examination, testified that ‘the four corners of Wall street are an equality. The O'Sullivan corner and this corner are sister values. It is the opposite corner. In 1896 I testified in reference to the property opposite,-the O'Sullivan property. I gave the value of the O'Sullivan property in 1873 at $235,000, while I gave the value of the plaintiff's property to-day as $220,000 in 1873.’ Plaintiff's counsel then proceeded to question him as to why he put a higher value on the O'Sullivan property than on the plaintiff's in 1873, in view of what he had said about the street corners, and he was asked as to the separate values of the buildings and the land. Then he was asked the following questions: ‘In the O'Sullivan case did you not testify that the O'Sullivan property was, without the buildings, worth, in 1896, $235,000? A. I do not recollect it. Q. What was its value without the buildings in 1873? Defendants' counsel: I object to the valuation of other specific property on the line of the elevated railroad as contravening the rule in the Jamieson Case. (The court allowed the question on cross-examination. Defendants' c...