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avenues, property has risen from $5,000 or $6,000 to $16,000 and upwards; in the same street, between Eighth and Ninth avenues, lots have risen from $7,000 to $12,000; and in Eighth avenue, below Fourteenth street, further east than plaintiff's property, there has been a rise of from 40 to 50 per cent. in the value of property. Another witness testifies to three successive sales of a plot in Thirteenth street, between Ninth avenue and Washington street, on which there were some old tenements and an abandoned foundry, the first of which was in 1874 sold for $24,500, in 1881 for $29,700, and in 1892 for $69,200; while there is testimony in the case that the value of plaintiff's property on Ninth avenue has not increased more than 15 per cent., or much less than the rise as far east as Eighth avenue; and it seems to us from the evidence in the case that the chief reason for the failure to advance with other property in the neighborhood can be attributed to no other cause than the maintenance and operation of defendants' road. The testimony offered of the appellant on the same subject varies greatly as between the different witnesses, and the same witness even testifies in a contradictory manner concerning the value of the same property at the same time. Now, there is a nearly uniform relation between fee and rental values of property in this city, which is from 7 to 8 per cent., and on this basis of fee value it is apparent that the present rentals are a good deal below what they should have been but for defendants' road. On a review of all the evidence, we think the court was fully justified in coming to the conclusions it did as to the effect of the railroad on fee and rental values. In Becker v. Railway Co., 131 N. Y. 511, 30 N. E. 499, it was said:
“If it (the property] had not increased in value to the same extent that it would have done but for the erection and operation of the road, that is a fact which shows damage. What we now say is that evidence that the value of land on the avenue has not increased in the same proportion as land in the side streets is admissible, and may be considered, in connection with the other evidence in the case, upon the question of fact whether the land of the owner has increased in value to the same extent that it would have done but for the presence of the road. * In the nature of the subject, proof of a possibly greater value attaching to the property but for the building of the road is difficult, and somewhat shadowy and vague."
The appellants further contend that the court erred in refusing to find defendants' thirteenth conclusion of law, as requested by them, which was to the effect that in estimating and fixing the sum which the defendants might pay to obviate the injunction herein the special benefit resulting from the benefit of defendants' railroad to the premises in suit should be offset against any consequential damages resulting to said lot and building from the appropriation or interference with the easements in Ninth avenue, appurtenant thereto, by the maintenance and operation of defendants' railroad in front thereof. This the court very properly refused, because it had before found as a fact on sufficient evidence that no special benefits to plaintiff's property resulted from the railway; and for the reasons before given there was no error in the court's refusing to dismiss the complaint, either upon the plaintiff's case or upon all the evidence offered.
Appellants also contend that the court below erred in finding in the nineteenth paragraph of findings of fact that “the structure is boarded over between the tracks," insisting that this is absolutely repugnant to the fact, and is wholly unsupported by any evidence in the case. If this were so, it would not be surprising that the learned judge had made such an error in the multiplicity of findings requested by the parties hereto. In the case at bar the defendants made 36 requests to find facts and 21 requests to make rulings upon questions of law; and, in addition, they asked that if the court refused to find any one of the findings of fact it should find the same as a ruling upon a question of law, and the same request was made as to proposed requests for rulings upon questions of fact, and also that each sentence of each proposed finding was proposed separately, the same as if separately numbered. We have not had the patience to compute the entire number of requests to find and conclusions of law submitted according to these proposals. In Steubing v. Railroad Co., 138 N. Y. 658, 34 N. E. 369, the court says:
“This is a practice not to be tolerated. The large number of requests are generally quite embarrassing to the courts. But when the same matter is requested to be found both as facts and law, it duplicates all the specific findings requested, and the number is still largely increased when every sentence is also requested to be found both as facts and law. Such a practice is not needful for the protection of the rights of any party, and the tendency must be to ensnare the trial judge, and frequently to de feat the ends of justice by inducing mistakes, confusion, and uncertainty into the records of cases brought up for review. Proper practice requires that a request to find either facts or law should be plainly stated in a single proposition. The whole of it can be granted or refused, and any modification of the requested finding should be left to the discretion of the trial judge."
And the court has therefore held that where a request to find embraces several propositions, some of which the party making the request is entitled to have found, and some not, the refusal of the request is not error, and therefore says:
"There is considerable difficulty attending the trial of this class of cases, and a judgment should not be reversed if, upon the whole record, we can see that no harmful error was committed, and that the proper principles of law were not misapprehended or misapplied."
See, also, Struthers v. Railroad Co., (Com. Pl. N. Y.) 25 N. Y. Supp. 81, and we think this is specially applicable to this case. We do not see how this finding, even if unsupported by evidence, could or did in any way injure the defendants. The testimony is clear that the nearest rail of the structure is not nearer to the plaintiff's house line than 36 feet. The finding itself is obscure. The whole sentence reads: "The structure is boarded over between the tracks, and between the rails of the tracks there are ties running at right angles with the lines of the house." But a reference to the testi. mony of Mr. Osborn, and the diagram, plaintiff's Exhibit A, which is referred to in the index of this case as printed, but which is not, and which we have consulted, as we have a right to do, it being on file in this court, shows that the elevated railroad in front of the premises in suit is composed of two independent structures, one
for the uptown trains and the other for the downtown trains, and that between the two sets of tracks on each of these structures it is boarded over, so that the finding is supported by unquestioned testimony. This disposes of all the exceptions to the findings of fact and conclusions of law urged upon the argument of this appeal and in appellants' brief.
Besides these, two exceptions to the exclusion of evidence were argued by them. The first respects the exclusion of the opinion of one of plaintiff's witnesses as to the cause of the increase in the value of lots west of Ninth avenue and adjacent to Gansevoort market. When the propriety of this question was urged before the trial judge, counsel was asked by the court, “Is not that one of the questions to be determined in this action?” to which defendants' counsel replied: "I think not. As I understand, the rulings of the court of appeals is this: that we cannot ask what would have been the value if the road had not been built, which is the conclusion for the court to draw. But it seems to me to be entirely proper for me to show all of the facts, circumstances, and conditions," to which the court replied, and, as we think, very properly: “That you may show, but that is not what you are asking for. You are asking for the opinion of the witness as to the cause of the appreciation of the property, when, if the witness had been asked to state his opinion as to the cause of the depreciation, it would have been directly within the rulings of the court of appeals.”
The defendants offered proof of the application of plaintiff to the Union Dime Savings Bank for a loan upon the premises in suit, and the bank's appraisement of the value of the premises, which was excluded. Mr. Leake, the secretary of the Union Dime Savings Institution, was then on the stand, and most of the questions asked were ruled out, because he had no personal knowledge of the matters inquired of. But the papers themselves were in no sense evi. dence. As we understand them, they were not under oath, were prepared merely for the purpose of procuring a loan.
It was a matter entirely foreign to anything connected with the issues in this case, and for this reason the plaintiff's statement contained in them could not be taken as an admission as against his interests in this action. The judgment should therefore be affirmed, with costs. All concur.
(Common Pleas of New York City and County, General Term. February 5,
1894.) 1. APPEARANCE-OBJECTIONS TO SERVICE OF SUMMONS.
General appearance is a waiver of objections to service of summons. 2. DISTRICT COURT OF NEW YORK CITY-APPEAL-NEW TRIAL.
Code Civil Proc. $ 3068, which provides that, on appeal from a justice court, a new trial may be had in the appellate court, does not apply to the district courts of New York city.
Appeal from fourth district ccurt,
Action by Max Abramson against John W. U. Koch for injury to plaintiff's wagon, alleged to have been occasioned by defendant's carelessness, whereby a collision occurred between the wagons of the parties. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
Argued before BISCHOFF and GIEGERICH, JJ.
BISCHOFF, J. Having appeared, answered, and defended the action without objection, defendant is now precluded from urging that the court below did not acquire jurisdiction of him by service of the summons. Cushingham v. Phillips, 1 E. D. Smith, 417; Sperry v. Moore, Id. 361; Andrews v. Thorp, Id. 615; Hogan v. Baker, 2 E. D. Smith, 22; Ingersoll v. Gillies, 3 E. D. Smith, 119; Miln v. Russell, Id. 303; Dempsey v. Paige, 4 E. D. Smith, 218.
Upon all the evidence adduced on the trial, there appears but a fair conflict as to the manner in which the accident occurred, and as to the effect of the collision upon plaintiff's wagon, and its contents; also, as to the value of the necessary repairs. The determination of these questions of fact was properly for the justice below, and his findings that the accident was caused by defendant's care lessness, and without contributory negligence on plaintiff's part, and that the proper amount of damages was in the sum for which judg. ment was rendered, must be conclusive, in view of the record submitted. Weiss v. Strauss, (Com. Pl. N. Y.) 14 N. Y. Supp. 776. Appellant does not rely upon exceptions taken to rulings on the trial, and an examination of them discloses no error.
Section 3068 of the Code of Civil Procedure, which provides for a new trial in the appellate court, applied to appeals from the justices' courts only. Section 3213 requires the new trial, if one is directed upon appeal from the district court in the city of New York, to be had in the district court. Judgment affirmed, with costs.
(7 Misc. Rep. 25.)
LYDON et al. v. METROPOLITAN EL. RY. CO. et al. (Common Pleas of New York City and County, General Term. February 5,
A will which gives a person real estate for life, and directs the executors to sell the premises on the death of the life tenant, and divide the proceeds among certain persons, gives such persons no interest in the land. Appeal from judgment on report of referee.
Action by Richard P. Lydon and others against the Metropolitan Elevated Railway Company and another to enjoin defendants from maintaining and operating an elevated railroad in front of the premises Nc. 843 Sixth avenue, and for damages sustained thereby. From a judgment dismissing the complaint, plaintiffs appeal. Affirmed.
Argued before BOOKSTAVER, BISCHOFF, and PRYOR, JJ.
BISCHOFF, J. Plaintiffs base their right to maintain their action on the provisions of the will of Dennis W. Buckley, their ancestor, under which they claim title, as remainder-men in fee of the premises in suit. The life tenant under the terms of the will of said testator, Ellen Lydon, is still living, and the plaintiffs are her children. The right of plaintiffs to maintain this action, therefore, depends upon the construction to be given to the will of Dennis W. Buckley, deceased. Appellants are undoubtedly correct in their contention that, as a matter of law, where there is a direction for a future conversion of real property into personalty, the property is not deemed to be converted until the time of its conversion, as indicated by the testator, has arrived. This proposition is abundantly established by authority, (Underwood v. Curtis, 127 N. Y. 533, 28 N. E. 585; Savage v. Burnham, 17 N. Y. 561; Moncrief v. Ross, 50 N. Y. 431; Vincent v. Newhouse, 83 N. Y. 505;) but they are in error in supposing the correctness of such contention is decisive of this action in their favor. Under the terms of testator's will, so far as the question in controversy is concerned, testator has provided as follows:
“I give, devise, and bequeath to my daughter Ellen Lydon, wife of P. H. Lydon, the house and lot No. 843 Sixth avenue, in the city of New York, for and during her natural life.
On the death of each of iny said children to whom I have devised real estate for life, I order and direct, and I do hereby authorize and empower, my executors to sell and dispose of the said premises herein devised to such child so dying for life, and to distribute the proceeds therefrom as follows:
* If he or she leaves children or descendants of children, then among said children and descendants of children, the descendants of a child taking the share the parent would have taken if living. If he or she leave no children or descendants of children, then among his or her brothers and sisters, and descendants of brothers and sisters, said descendants taking the share the parent would have taken if living, provided that, on the death of a son leaving a wife surviving him, that, before any such distribution, one-fifth part of said proceeds of property devised to him for life shall be paid to said wife for her own use and benefit."
It will be observed that the plaintiffs, by the language of the will, they being grandchildren of testator, are given their respective shares in the proceeds of the lands when sold, the executors having a power of sale in trust for the purpose cf distribution. Under such circumstances, the plaintiffs, no matter where the title to the real estate may be at any time after the death of testator, have no interest whatever given them by the terms of the will in the land itself as land. It was the manifest intention of the testator that the beneficiaries should have their respective interests in money, and not in land; and the question of where the legal title to the land may be in the mean while cannot affect their rights, as long as they have no present right to require the executors to convert the said real property into personalty. The position and the rights of the plaintiffs under testator's will are well stated in Meakings v. Crom