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-*81one feet of the premises in suit, having this frontage upon Thirteenth street, and a depth equal to the width of the property upon First avenue. Upon the first floor of this portion of the lot there is a store, with apartments above it. There is but one building upon the whole lot, but it 'plainly appears that this rear portion of it is quite separate and distinct from the front. The tenant of the Thirteenth street store testifies: “The entrance to that store is.on 13th street. There is no connection from my store to the store in the front of the building.- There never has been while I lived in it. Always a separate store from the corner store.” As to the apartments, the plaintiffs’ expert testified: “ Q. Do you consider that building in the rear a separate building ? A. It is all under one roof. It has its own entrance. It has an entirely distinct set of apartments from the front apartments.” It seems.quite clear that the two stores were actually walled off. That this was true of the apartments is not equally clear, but it does appear that they were architecturally distinct from those in front. To such facts the rule laid down in Keene v. Met. El. R. Co. (79 Hun, 451) applies. In that case there were a number of “ distinct and unconnected apartments,” all in one building, and it was held erroneous to allow damages for such as did not front upon the avenue in which the elevated road ran. Van Brunt, P. J., said : “ It has been urged that because of the fact of there being unity of construction in the building and unity of ownership, a different rule should obtain. But it is apparent that, notwithstanding the unity of construction and unity of ownership, these premises are occupied as distinct and separate buildings, just as much as though there was no architectural unity and there was a division of ownership.” The rule thus laid down is quite satisfactory. Following it, we think that the allowance of any damage for either the store or the apartments of No.' 354 East Thirteenth street was erroneous.
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 *82awarded damages for this part of the premises! In its decision, the court finds that the plaintiffs’ testator owned the whole premises, eighty-six feet deep; that “ attached to the plaintiffs’ premises above described ” were certain easements, and that for the deprivation of these easements the specified sums weré due. Even if the apartments were not separated by a wall, they were, as in the Keene case, “distinct and unconnected apartments,” “distinct within themselves.” In any event, it was erroneous here to allow damages for the Thirteenth street store, which was walled off from the front of the building. '
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.