Post v. Manhattan Ry. Co.

• Decision Date: 16 December 1890
• Citation: 26 N.E. 14,125 N.Y. 697
• Parties: POST v. MANHATTAN RY. CO. et al.
• Court: New York Court of Appeals Court of Appeals

125 N.Y. 697

26 N.E. 14

POST

v.MANHATTAN RY. CO. et al.

Court of Appeals of New York.

Dec. 16, 1890.

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

Action by Wright E. Post against the Manhattan Railway Company and the Metropolitan Elevated Railway Company for damages to the rental value of certain houses of plaintiff by the erection, maintenance, and operation of defendants' street railway on the street in front thereof, and for an injunction restraining the further operation of such road. A judgment for plaintiff was affirmed by the general term, and defendants appeal.

APPEAL-REVIEW-OBJECTIONS NOT RAISED BELOW.

The objection that an action for damages to the rental value of plaintiff's real property by the erection of a street railway in front thereof cannot be maintained, for the reason that, during the term for which damages are claimed, plaintiff was not in possession of the premises, but that they were in possession of tenants under him, cannot be raised for the first time on appeal. Affirming 7 N. Y. Supp. 957,mem.

Julien T. Davies, for appellants.

J. Langdon Ward, for respondent.

EARL, J.

The defendants claim that the evidence shows that, during the term for which damages were allowed in this action, the plaintiff was not in possession of the premises damaged, but that they were in the possession of tenants under him, and hence that he cannot maintain this action for the recovery of such damages. The answer to this claim is that no such point appears to have been taken in the court below. The defense that the premises were during the time stated in the possessionof tenants was in no way mentioned in the answer, nor was it mentioned upon the trial. All the evidence in reference to the occupancy of the premises by tenants came out incidentally. It was not offered to show that the premises were occupied by tenants, but simply to show how much the plaintiff had been able to rent them for, and thus to show the amount of his damages. No leases were put in evidence, nor were the terms or conditions of any lease or the nature of the occupancy proved. When the plaintiff offered evidence of the opinions of competent witnesses as to the diminished rental value of the premises, for the purpose of showing his damages, the defendants did not object to the evidence on the ground that the plaintiff was not, being out of possession, entitled to recover such damages, but on the ground that the questions were incompetent,...