Selma Wallach, Appellant, v. The New York and Harlem Railroad Company and The New York Central and Hudson River Railroad Company, Respondents

Selma Wallach, Appellant, v. The New York and Harlem Railroad Company and The New York Central and Hudson River Railroad Company, Respondents. First Department, February 23, 1906. Real property — injury to real estate by elevated railroad viaduct not ' damnum absque injuria. The injury to adjoining property caused by the heightening of an embankment railroad viaduct in the city of New York, pursuant to Laws of 1893, chapter 339, as amended, is not damnum absque injuria, and it is error to dismiss the complaint in an action for injunction and damages by the owner of such adjoining property on the grounds aforesaid. Appeal by the plaintiff, Selma Wallach, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New'York on the 7tli day of July, 1902, upon the decision of the court, rendered after a. trial at the New, York Special Term, dismissing, the complaint upon the merits. James C. Bushby of counsel [Bushby & Berkeley, attorneys], for the appellant. Alexander S. Lyman of counsel [Ira A. Place, attorney], for the respondents. [MAJORITY — Clarke, J.:] Clarke, J.: This action was brought for an injunction and. damages with reference to the' plain tiff’s" premises known, as No. 1505 Park avenue, situated on the east side of said -avenue, distant seventy-five feet eight inches, southerly from the southerly side of One Hundred and Tenth street in the city of New York, by reason of the changes in the viaduct railroad structure- of the defendants, carried out under the provisions of chapter 339 of the Laws of 1892 and amending acts. The judgment was entered July 7, 1902, upon a decision" filed June 28, 1902. . The learned trial court stated in the decision: “ Pursuant to chapter 339 of the Laws of 1892, the stone embankment upon which the defendants’ railroad in Park Avenue was previously operated was increased in height about eleven feet, and since-February 16, 1897,, the defendants have operated their railroad upon said embankment; increased in height as aforesaid. The. work done in • Park avenue pursuant to chapter ' 339 of the Laws of 1892, and the maintenance of said embankment ■ at said increased height, and the operation, of the defendants’ railroad thereon since February 16, 1897, have caused damage to the plaintiff’s said premises, over and above the damage caused by the said railroad', as the same Was maintained, and used prior tó '1892; "but all; of said damage comes, within the legal principle of damnum 'absque injuria, and no one of the defendants is liable therefor; ” and judgment was entered thereon dismissing the complaint on the, merits and with costs. For this.decision the court had the direct and controlling authority of Fries v. New York & Harlem R. R. Co. (169 N. Y. 270), decided in December, 1901. But the doctrine of the Fries case was overruled in Muhlker v. Harlem Railroad Co., (197 U. S. 544); and in Sander v. State of New York (182 N. Y. 400) Chief Judge Cullen said: “But on appeal to the Supreme Court of the United States, the Muhlker case, with several others which followed that decision,. was reversed, the Supreme Court holding that under the decisions of this court in the elevated railroad cases, abutting owners had special easements in a street, an invasion of which by the erection of a viaduct, without compensation for such invasion, was taking property without due process of law in contravention of the Federal Constitution. Of course, with the decision of the Supreme Court in the Muhlker case, our own decisions in the cases-cited have ceased to be authorities.” It follows, therefore, that the judgment should he reversed and a new trial granted, with costs to the appellant to abide the event. O’Brien, P. J., Patterson, Ingraham and Laughlin, JJ., concurred. . Judgment reversed, new trial ordered, costs to appellant to abide event. Order filed. See U. S. Const, art. 1, § 10, subd. 1; Id. 14th amendt. § 1.—[Rep,