Cooper v. Manhattan Ry. Co.

PER CURIAM.

The premises in question are situated on the northeasterly corner of the Bowery and Houston streets. There is an elevated railroad station there, the stairs going down into Houston street. The premises for which damages were given were known as “No. 281 Bowery” and “Nos. 92, 94, and 96 East Houston Street.” No. 281 Bowery was a three-story frame building, with a brick front 23 feet on the Bowery, and 32 feet on the street. Nos. 92, 94, and 96 East Houston street were two-story brick stores, 22 feet deep by about 13£ feet front. No rental damage was allowed, but fee damage to the amount of $5,000 was given. The only question necessary to be considered is the point made that Nos. 92, 94, and 96 East Houston street did not abut upon the elevated railroad, and therefore no damages could be awarded as to them. Under ordinary circumstances, of course, this would be a bar to recovery. But the improvements upon the lot in question are entirely different from those which would be suitable for the value of the lot, and, when the lot comes to be improved, undoubtedly a single building will be erected covering the whole of the premises in question, and fronting on the Bowery. The court may take judicial notice of the fact that lots in the city of New York are ordinarily at least 75 to 100 feet in depth, the buildings on corner lots frequently covering the whole lot 'in the business portion of the city; and, although these premises may be divided in the manner stated for the purpose of occupancy, yet in reality the buildings are upon the single lot fronting upon the Bowery. It would seem, therefore, that in determining the question as to whether it had sustained fee damage it should be treated as a single lot. While an examination of the testimony, showing, as it does, a large increase in value of the premises in question, might have led us to the conclusion, if the question of damages had originally been presented to us, that the plaintiff had not shown himself entitled to any damage, we think that, in determining the question as to whether the case shows that any damage has been sustained, we should bear in mind that the court below had the witnesses before it, and heard their testimony, and was better able to judge of the weight of such testimony than we, who have simply the printed record before us. It seems to us, however, that the award which has been made is higher than any of the evidence justifies, and should be reduced to the sum of $2,500. If the plaintiff stipulates to reduce the damages to the sum of $2,500, the judgment appealed from, as so reduced, should be affirmed, without costs. H such stipulation is not given, the judgment should be reversed, and a new trial ordered, with costs to the appellants to abide the event.