Boetzkes v. Manhattan Railway Co.

Patterson, J.:

On the trial of this cause the court, under the defendants’ objection, admitted testimony of one Philip Gombrecht respecting the change in rental values of premises belonging to him situated near the property of the plaintiff involved in this action. This testimony was of the same character as that condemned by the Court of Appeals in the recently decided case of Jamieson v. Kings County Elevated Railroad Company (147 N. Y. 322). Even if this evi*527dence was properly admitted, the judgment of the court below cannot stand.

For we think that there is another ground in the record for the reversal of the' judgment, and that arises in connection with the evidence respecting the fee value of the premises in question. Substantially the whole issue as to the fee value turned upon the testimony of expert witnesses. The plaintiff was obliged to show either a decline in value of his property after the building of the elevated railway, or that his premises had not shared in the advance of values, due to the growth and development of the city, participated in by neighboring properties off the line of the elevated railroad.

Two findings of fact were proposed by the defendants, and a request made that they he adopted—one, that the value of the premises in question was at least $20,000 greater than it was at the period of highest values prior to the building of the defendants’ railway; and the other, that the value of the plaintiff’s lots, excluding the buildings, was at least $40,000 greater than it was prior to the construction of the defendants’ railway. If these facts had been found by the learned judge, it seems that they would have compelled a conclusion that there was no real damage to the fee. The testimony of the plaintiff’s professional witness is to the effect that there was an increase in the value of the plaintiff’s lots from 1877 to the present time of about seventy-five per cent. The elevated railroad was constructed and put into operation in the year 1878. The evidence does not show anything regarding the increase in values of property off the line of the elevated railroad since it was constructed on Third avenue. We think, therefore, as the case is now presented, the defendants were entitled to the findings of fact requested to be made, and that had they been found the result in the court below would have been different.

The judgment must be reversed and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Judgment reversed, new trial ordered, with costs to appellants to abide event.