I feel constrained to dissent from the opinion in this case, not because I am unwilling to agree to the particular rule therein adverted to; but because I think there was some evidence upon which the decision of the trial court could rest. It may be considered unsatisfactory and it may be vague; but that consideration is no ground for reversing the judgment, as we held in the Becker case, (131 N.Y. 509). I do not object to the rule which prohibits an award of damages where there has been no proof of damage, or where it must rest upon theoretical inferences. That rule was laid down in the Bohm case, (129 N.Y. 576), and must be regarded as established by that decision; but I do object to the application of the rule to the facts as developed in the present case, which disclose a different condition of things from what was found to exist in the Bohm case. It cannot be said with respect to the entry of the elevated railroad into the neighborhood of the properties described in the complaint, that that part of the city was brought into existence and peopled through the agency of the defendants, unaided by a normal city growth which was operating to increase city values. It *Page 308 seems to me that consistency with our prior decisions, which have affirmed recoveries based upon comparisons of property values in the neighborhood in connection with other facts relating to the railroad, as the only practicable proof within the reach of the complainant, requires us to affirm the recovery here. TheBecker case, (supra), is an authority which we cannot well overlook in the consideration of the disposition of the present case.
ANDREWS, Ch. J., PECKHAM and HAIGHT, JJ., concur with FINCH, J., for reversal; O'BRIEN and BARTLETT, JJ., concur with GRAY, J., for affirmance.
Judgment reversed.