Otten v. Manhattan Ry. Co.

• Decision Date: 20 October 1896
• Citation: 44 N.E. 1033,150 N.Y. 395
• Parties: OTTEN v. MANHATTAN RY. CO.
• Court: New York Court of Appeals Court of Appeals

150 N.Y. 395

44 N.E. 1033

OTTEN

v.MANHATTAN RY. CO.

Court of Appeals of New York.

Oct. 20, 1896.

Appeal from supreme court, appellate division, First department.

Action for injunction and damages brought bt Henry Otten against the Manhattan Railway Company. From an order of the appellate division of the supreme court reversing a judgment dismissing plaintiff's complaint (37 N. Y. Supp. 982), the defendant appeals. Appeal dismissed.

Brainard Tolles, Julien T. Davies, and John F. Dillon, for appellant.

Wm. W. Badger, for respondent.

VANN, J.

This is the usual action for an injunction and damages against an elevated railroad company in the city of New York. The premises in question consist of two lots of land situated upon the easterly side of Ninth, or Columbus, avenue, each with a frontage of 25 and a depth of 74 feet. The buildings standing upon these lots are two five-story houses, erected in 1887, of the same size and value, each 25 by 60 feet, and numbered, respectively, 783 and 785. There are stores on the ground floor, with two suites of five rooms each on the four flours above. The plaintiff purchased the property, substantially as it now is, in 1888, for $43,000, and at the time of the trial it was all rented, and produced annually an aggregate of $4,260. The apartments at the rear, which have light and air without obstruction, rent for the same amount as those in front. When this action was commenced, in January, 1891, the railroad of the defendant, which was built in 1879, consisted of a double track 47 feet and 7 inches above the surface of the street, or on the same level as the window sills in the fifth story of plaintiff's houses. When the action was tried in March, 1894, there was a third track, as was proved without objection, used for express trains, which ran at short intervals at the rate of 30 miles an hour. They did not stop within a long distance of the premises in question, which are between 98th and 99th streets, and substantially equidistant from the nearest stations at 93d and 104th streets, where the regular trains, running on the double tracks, were in the habit of stopping. The structure upon which the tracks are laid is in the usual form, and substantially covers the front of plaintiff's property, while the three tracks and the track walks cover a large part of the street below. Access is obstructed as usual, while light and air are obstructed more than usual. The locality was undeveloped until after the road was built, when buiding began and rapidly increased, while values increased from $2,000 a lot in 1878 to $16,000 and over at the time of the trial. The population of the district has grown with surprising swiftness, as indicated by the sale of tickets at the 93d street station, which in 1881 amounted to 265,272, while in 1893 it had increased to 3,115,060. The trial court did not separately state the facts found, but, in stating the grounds upon which the issues were decided, held ‘that, although the plaintiff's easements have been interfered with by the defendant, the plaintiff has been fully compensated therefor by the resulting benefits of defendant's acts, and has suffered no pecuniary injury for which he is entitled to compensation; and, since the defendant's road has been built with full authority of law, and now exists and is being operated by like authority, the plaintiff has no equitable cause of action; and that the plaintiff has failed to show any loss of rental values due to the defendant's acts during his ownership.’ Judgment was directed dismissing the complaint, but without costs. The appellate division reversed the judgment on questions of fact and of law, upon the ground that the value of the premises in question should be ascertained as of the time of the trial; that the court should consider whether the operation of the defendant's road is a present benefit, without regard to the benefits which have resulted in the past; and that, as now operated, the railroad is of no substantial benefit to the property of the plaintiff, owing to other means of access, while its operation and maintenance are a substantial injury. 2 App. Div. 396,37 N. Y. Supp. 982. One of the learned justifies dissented. The defendant appealed from the order of reversal, and gave the usual stipulation for judgment absolute if the order should be affirmed.

At the outset our power to review is challenged by the respondent upon the ground that the appellate division reversed the judgment of the special term, as stated in the order from which this appeal is taken, upon the facts as well as the law. Our present constitution, after limiting the jurisdiction of this court to the review of questions of law, provides that ‘no unanimous decision of the appellate division of the supreme court that there is evidence supporting or tending to sustain a finding of fact, or a verdict not directed by the court, shall be reviewed by the court of appeals.’ Const. art. 6, § 9. This has no application to the case before us, because the decision of the appellate division was not unanimous, and instead of affirming, it reversed the findings of the court below. The next sentence, however, of the same section is more important, as it is the basis of our present jurisdiction, which is both conferred and limited by it, in these words, viz.: ‘Except where the judgment is of death, appeals may be taken, as of right, to the said court only from judgments or orders finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance judgment absolute shall be rendered against them.’ The order in question did not finally determine an action or special proceeding, as it granted a new trial; so that the first question is whether it granted a new trial ‘on exceptions.’ The decision of the special term was in accordance with that part of section 1022 of the Code which authorizes the trial court to ‘file a decision, stating concisely the grounds upon which the issues have been decided, and direct the judgment to be entered thereon.’ After a decision of this character, as the section further provides, ‘that defeated party may file an exception to such decision, in which case, on an appeal from the judgment entered thereon upon a case containing exceptions, the appellate division of the supreme court shall review all questions of fact and law, and may either modify or affirm the judgment or order appealed from, award a new trial, or grant to either party the judgment which the facts warrant.’ If the ‘exception’ thus authorized has the same meaning as the word ‘exceptions,’ as used in the constitution, it must follow that a new trial granted on exceptions, within the meaning of that instrument, may be founded on an exception of this kind. We see no reason for any difference in the meaning of the same word, as thus used in the constitution and the Code. It appeared in section 1022 when the constitution was framed. Its function under that section is the general function of an exception, which is a protest against the decision of a court. Sterrett v. Bank, 122 N. Y. 659, 662,25 N. E. 913. It is not a substitute for a notice of appeal, which, instead of being dispensed with, is expressly required by the same sentence that authorizes the exception to be filed. Its office is apparently the same as that of the exceptions mentioned in section 994 of the Code, which makes provision for excepting to a decision of a court or referee where the facts found are separately stated. It was by virtue of this exception alone that the appellate division had power to review either the facts or the law, and the order of reversal, which could not have been made if the exception had not been filed, is, as we think, and order granted on an exception. Bank v. Butler, 133 N. Y. 564, 30 N. E....