App. Div.]

First Department, June, 1908.

port in the evidence, and has no better or firmer basis to rest upon than a suggestion by counsel. It is said that perhaps his employers had not paid him all that he was entitled to receive under his contract, and, therefore, he may perhaps have taken and kept his employers' money, believing that that amount was fairly due him. Of this the evidence gives no hint. As I read the testimony, the proof was that the defendant had been paid, during the term of his employment, the full amount due him upon his drawing account, and that the amount thus paid exceeded the fifty per cent of the profits realized upon the sales effected by him. Such is the fair construction of the complainant's testimony, and there was no evidence to the contrary. But even if there was something due him upon his contract, he had no right to appropriate his employers' money, and his act in doing so was wrongful. The fact that he concealed the misappropriation from his employers is persuasive proof that he did not take it under any claim of right. And, finally, if he took and kept the money under the claim and belief that he was entitled to do so, the burden rested upon him to prove the fact. The People having proved the essential facts constituting the crime of larceny, were entitled to rely upon the inference of guilty intent, and it was for the defense to prove, if it could, the absence of that intent. If full payment had not been made under the contract, that fact would not have justified the embezzlement, and it was, therefore, not necessary for the prosecution to prove that full payment had been made, although, as already said, I think that this fact was proven. The defendant, apparently, had a fair trial and selected his own line of defense. Having failed in that, I can see no ground in the record for affording him an opportunity to devise another. In my opinion the judgment should be affirmed.

CLARKE, J., concurred.

Judgment reversed and new trial ordered. Settle order on notice.

First Department, June, 1908.

[Vol. 126.

In the Matter of the Application of the MANHATTAN RAILWAY COMPANY, Appellant, v. AUGUSTUS V. H. STUYVESANT and Others, Defendants, and WILLIAM J. MORRIS and Others, Respondents, Relative to Acquiring Title to Certain Real Property in the City and County of New York.

First Department, June 19, 1908.

Eminent domain-condemnation of easements - damages-evidence. An order remitting to new commissioners the assessment of damages caused by the condemnation of easements of light and air taken on the construction of a stairway to an elevated railroad is appealable.

In estimating the damage caused by taking easements of light and air, the possible benefits to the realty may be considered.

It is not error to reject evidence of what was paid to other owners, whose estates differ radically from that of defendant.

APPEAL by the plaintiff, the Manhattan Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of February, 1908, denying the plaintiff's motion to confirm the report of commissioners herein and remitting the matter to new commissioners.

Francis S. Williams, for the appellant.

John C. Shaw, for the respondent Morris.

SCOTT, J.:

This is a proceeding to condemn so much of the easements of light, air and access appurtenant to the premises known as Nos. 31 and 33 Third avenue in the city of New York as will be taken by the construction and maintenance of a stairway connecting plaintiff's elevated railway station at the intersection of Third avenue and East Ninth street with the surface of said Third avenue.

A judgment of condemnation having been entered and commissioners appointed to ascertain the damage, such proceedings were had that said commissioners made and filed a final report awarding damages to the defendants William J. Morris and Catherine G. Morris, his wife, the other defendants having executed releases to

App. Div.]

First Department, June, 1903.

the plaintiff. A motion made by plaintiff for a confirmation of the report was denied, and an order made remitting the matter to new commissioners to ascertain the damages to be paid to the defendants. From that order the plaintiff appeals. The respondents strenuously insist that the order is not appealable. The contrary has been distinctly held. (Manhattan R. Co. v. O'Sullivan, 6 App. Div. 571; affd. on opinion below, 150 N. Y. 569; Erie R. R. Co. v. Steward, 59 App. Div. 189.) The question of appealability decided in Matter of Commissioner of Public Works (111 App. Div. 285; 185 N. Y. 391) arose under the street opening provisions of the New York city charter and not under the condemnation provisions of the Code of Civil Procedure. Two reasons are assigned by the respondents why the order refusing to confirm the report is right and should be affirmed. It is said that the commissioners arrived at their award by offsetting benefits against damages, and this is said to have been erroneous. This contention is based upon the fact that evidence was admitted tending to show that the erection and maintenance of the stairway would be of benefit to the abutting property. Section 3370 of the Code of Civil Procedure provides that in fixing the amount of compensation to be paid by the condemnor the commissioners shall not make "any allowance or deduction on account of any real or supposed benefits which the owners may derive from the public use for which the property is to be taken, or the construction of any proposed improvement connected with such public use," and both the former General Railroad Act (Laws of 1850, chap. 140*) and the former Elevated Railroad Act or Rapid Transit Act (Laws of 1875, chap. 606, § 20)† contained similar provisions. Where actual tangible property is taken these rules are applicable, and the award for the property taken cannot be decreased by offsetting the supposed enhancement of value to other property not taken. (Matter of City of New York, 190 N. Y. 350.) What is sought to be condemned in the present case, however, is not actual tangible real

*See § 16, as amd. by Laws of 1854, chap. 282, § 3; Laws of 1864, chap. 582, § 4, and Laws of 1883, chap. 382-[REP.

Both of these provisions were repealed by the Railroad Law (Laws of 1890, chap. 565), § 180-183. See, also, Gen. Corp. Law (Laws of 1892, chap. 687), SS 34-36.- [REP.

First Department, June, 1908.

[Vol. 126. estate, but easements appurtenant to the defendants, real property, and the damages to be awarded to the owner of the real property are in the nature of consequential damages. The award to the owner of the real property thus affected but not taken is measured, not by the supposed value of the easement in the street separate from the abutting property, but by the damages which the abutting property sustains as a result or consequence of the loss of the easement. As was said in Newman v. Met. El. R. Co. (118 N. Y. 618): "The special and peculiar advantages which property receives from the construction and operation of the road and the location of the stations are elements which enter largely into the inquiry whether there is injury or not, and the jury must consider them and give to them due weight in their verdict. Between this rule and the statutory provision quoted there is no conflict." To the same effect are South Buffalo R. Co. v. Kirkover (176 N. Y. 301) and Bohm v. Met. El. R. Co. (129 id. 576). In the latter case it is pointed out that where the question involved is the deprivation of easements it is not really a matter of setting off benefits against damage, but that that proof of benefit bears directly upon the question of damage. And in the very latest authority upon the subject (Matter of City of New York 190 N. Y. 360) the propriety of considering benefits where the only question is the extinguishment of easements is distinctly recognized. The commissioners made no error, therefore, in admitting proof of possible benefit to the abutting property. It is also assigned as error that the commissioners excluded proof of what the plaintiff has paid to other persons owning interests in the abutting property in consideration of their releases of the easements in so far as their interests were affected by their extinguishment. The general rule is well established that a party may not establish the value of his own land by showing what was paid for another parcel similarly situated. (Huntington v. Attrill, 118 N. Y. 365; Matter of Thompson, 127 id. 463; Jamieson v. Kings County El. R. Co., 147 id. 322; Witmark v. N. Y. El. R. R. Co., 149 id. 393; Eno v. N. Y. El. R. R. Co., 158 id. 730.) An exception to this rule has been admitted where the difficulty of otherwise proving value is very great, and the other property is so similar in kind and character to that to be acquired that the evidence is reasonably satisfactory. (Langdon v. Mayor, 133 N. Y. 628.) Here the property to be

App. Div.]

First Department, June, 1908.

acquired by the plaintiff from the defendants is similar in character to that released to it by the other defendants, but the question before the commissioners was not as to the abstract value of the easement independent of the estate to which it is appurtenant, but the loss in the value of that estate by the deprivation of the easement. In order that evidence of the amount paid to other persons for the extinguishment of the easement should be relevant and competent as to the amount of injury to be suffered by defendants, it would be necessary that it should appear not only that the easement to be extinguished was the same, but that the estates to be affected were so similar as to afford a basis of comparison. This does not appear in the present case. The buildings affected are known as Nos. 31 and 33 Third avenue. The defendant Morris owns No. 31 in fee and holds a ground lease of No. 33, subject to renewals at the option of the landlord. He also owns the building on No. 33. The defendant Stuyvesant owns the fee of No. 33, subject to the lease to defendant Morris. The defendant Gaffney holds a lease of No. 31 expiring in 1900, and the defendant Brown is a sub-lessee under defendant of No. 33. We consider that the extent and quality of these various estates in the abutting property differ so radically from the extent and quality of defendant's estates therein that the evidence offered would have been of no value in determining the question of value which the commissioners were called upon to determine. It might not have been reversible error to have received the evidence, but it certainly was not such error to reject it. (Matter of Thompson, supra.) We find no legal error in the proceedings of the commissioners and no apparent inadequacy in the amount of their award.

The order appealed from will, therefore, be reversed, with ten dollars costs and disbursements, and the motion to confirm the final order granted.

INGRAHAM, MCLAUGHLIN, CLARKE and HOUGHTON, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted.