246 A.D. 634 | N.Y. App. Div. | 1935
Judgment for plaintiff for nominal damages, without costs, in an action to recover damages for impairment of the easements of light, air and access of plaintiff’s property by reason of the construction of an elevated railroad and station in the street adjacent thereto reversed on the law and the facts and a new trial granted, costs to appellant to abide the event. We are of the opinion that there was substantial damage to plaintiff’s property. It appeared on the former trial that actual sales of this property between 1920 and 1925 showed an increase in value from the time the elevated railroad structure was erected. This may have been due to the better facilities of transportation or to general increase in value for other reasons. Naturally, with the station and platform directly in front of plaintiff’s building and with the noise and vibration of passing trains, it would be expected that such a situation would tend to impair the value of the property by the interference with light, air and access. Notwithstanding the increase in value noted, it is competent for plaintiff to show that there would have been a still greater increase except for the disadvantages named. These potentialities should be considered, for the plaintiff is not bound or limited by the increased value as determined by sales alone. Findings inconsistent herewith are reversed and the conclusions of law are disapproved. Lazansky, P. J., Young, Hagarty, Tompkins and Davis, JJ., concur. Settle order on notice.
