Moore v. New York El. R. Co.

• Decision Date: 26 January 1892
• Citation: 29 N.E. 997,130 N.Y. 523
• Parties: MOORE v. NEW YORK EL. R. CO. et al.
• Court: New York Court of Appeals Court of Appeals

130 N.Y. 523

29 N.E. 997

MOORE

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

Court of Appeals of New York,

Second Division.

Jan. 26, 1892.

Appeal from common pleas of New York city and county, general term.

Action by Eliza Jane Moore against the New York Elevated Railroad Company and another. From a judgment of the general term affirming a judgment for defendants, plaintiff appeals. Reversed.

Charles E. Whitehead and Stanley W. Dexter, for appellant.

Brainard Tolles, for respondents.

BRADLEY, J.

The plaintiff, life-tenant of a house and lot at the north-east corner of Greenwich and Franklin streets, in the city of New York, brought this action to recover damages alleged to have been suffered by her by the maintenance and operation eration of the New York Elevated Railroad (of which the Manhattan Railway Company was the lessee) in Greenwich street in front of her premises, and the erection and maintenance of a station for passengers to go onto and depart from the cars, which station was near to the plaintiff's house in front on Green wich street, and on Franklin street, into which it extended. The plaintiff gave evidence tending to prove some disturbance of her easements of light, air, and access by the railroad and its use. She also gave some evidence of noise produced by it, and of the loss of privacy in the use of the third story of the building. It appeared that the rental value of the plaintiff's premises had depreciated since the railroad was constructed; and evidence on the part of the defendant was to the effect that in that neighborhood the depreciation of rents was occasioned by the removal of the business stand of the Long Island farmers from there to Gansvoort market, thus diverting the trade incident to that traffic from the former to the latter place. The court submitted to the jury the question whether the rental value of the plaintiff's premises had been diminished by deprivation of light, air, and access through the maintenance and operation of the road, and directed them to exclude from their consideration the elements of noise, vibration, and the loss of privacy, for which they could allow no damages. The plaintiff's exceptions were- First, to the portion of the charge directing the jury to exclude noise and vibration from consideration; and, second, to the like instruction as to the loss of privacy. As there was no evidence of any vibration, the first exception was too broad to raise the question in its application to the noise resulting from the operation of the road. Haggart v. Morgan, 5 N. Y. 422;Groat v. Gile, 51 N. Y. 431. And the question arises upon the exclusion of the subject of the loss of privacy from the consideration of the jury. It seems well established that the theory upon which an action at law may be supported by an abutting owner against the defendants is that they are in such sense trespassers or wrong-doers as to be liable to such owners for all the injurics resulting proximately from the wrongful act of maintaining and operating their elevated road. Lahr v. Rail-way Co., 104 N. Y. 269, 10 N. E. Rep. 528; Drucker v. Railway Co., 106 N. Y. 157, 12 N. E. Rep. 568: Kane v. Railroad Co., 125 N. Y. 164, 186, 26 N. E. Rep. 278. In the latter case, and in the more recent one of American Bank-Note Co. v. New York El. R. Co., 129 N. Y. 252, 29 N. E. Rep. 302, it was held that, while such relation of trespasser continued, the defendants were liable to the abutting owner for the damages occasioned to him by the noise of operating the road. This liability of the defendants is not that for which the remedy is by action in the nature of that formerly known as ‘trespass quare clausum,’ but rather in the nature of that...