59 N.Y.S. 335 | N.Y. App. Div. | 1899
Lead Opinion
While concurring in other respects in the opinion of Mr. Justice. Patterson, I am unable to agree with him as to the rulings concerning No. 354 East Thirteenth street. - This is the westerly twenty-
It is quite plain that such damages were allowed. In the first place, the evidence as to loss of rents was admitted over explicit objection and exception. The evidence was incompetent and should have been excluded; and to remedy this error, it ought distinctly to appear that it was harmless. But, on the contrary, it affirmatively appears that the court acted upon the incompetent evidence, and
For this error there should be a reversal and new trial. The judgment must be reversed and new trial ordered, with costs to appellants to abide event.
Yah Brunt, P. J., and McLaughlin, J., concurred; Patterson and Ingraham, JJ., dissented.
Dissenting Opinion
The correctness of the judgment from which this appeal is taken is challenged upon several grounds. First. It is claimed that there is insufficient proof to authorize the amount awarded for damages to rental value and of the amount fixed as that to be paid for' depreciation of the fee value as the alternative-to the'issuing of an injunction. An examination of the evidence satisfies us that the amounts allowed are' not only not excessive, but are reasonable.
Second. 'It is urged that the judgment, so far as it relates to an' injunction, should be reversed, the appellants claiming that the plaintiffs cannot make an absolute conveyance of the easements taken so as to vest the whole title thereto in the defendants. The plaintiffs are seized of the premises as trustees under the will of Bernard Reilly, who gave to them his residuary estate, of which the premises involved in- this suit are part, upon a trust upon the expiration tof which unborn children of one of the testator’s sons may be entitled to an interest in his real estate, and it is contended that such interest of unborn children in the easements taken by the defendants cannot now be conveyed or -cut off.- It is unnecessary for us to consider that contention, because by the 7th clause of the will a power of salé of the testator’s real estate is given to the trustees. While there are specific purposes enumerated for which the power may be
Third. It is further claimed that the judgment should not stand, because the. damages awarded are in part for property not affected by the construction and operation of the defendants’ railway. The premises are Nos. 215, 217 ¡First avenue, in the city of New York. There are two lots at the southwest corner of First avenue and Thirteenth street, with a frontage of thirty-one feet eight inches on the avenue and eighty-six feet deep. There is one building covering both lots, but on the Thirteenth street side there is an entrance to the rear of the one structure, and that rear part is known as No. 354 East Thirteenth street. The whole building is within one inclosure and under one roof. There is a store, the entrance to which is from the street, and the apartments above it are enté'red from the street, but the upper part of the whole building is accessible from the Thirteenth street entrance. It is. not shown that there is an independent wall completely separating that part of the building which has an entrance on Thirteenth street from the rest of the structure. .It is claimed that the court has found damage to the whole structure, and that by so doing there must have been included some award for impairment or depreciation of what is substantially an independent building on Thirteenth street, neither the fee nor the rental value of which has been affected by the elevated road. There is nothing in the proof to justify an inference that any part of the awards -was made respecting the part of the building on Thirteenth street. Throughout the entire proof, the alleged separateness of the Thirteenth street store and apartments from the frontage of the building is emphasized. The decision of the trial judge specifically states that the awards relate to 215 and 217 First avenue; and the only fact from which an inference is sought to be drawn that the awards also relate to the Thirteenth street store and apartments, is that in the decision the description of the property is given with -the full dimensions of the two lots.-
The judgment should be affirmed, with costs. ‘
Ingraham, J., concurred.
Judgment reversed, new trial ordered, costs to appellants to abide event.