SECOND DEPARTMENT, APRIL TERM, 1897. [Vol. 15. the objections to the validity of the elections good. He granted the application as to the election of 1896, but denied that as to the election of 1895, on account of the laches of the petitioner. At common law "such of the shareholders as actually assemble at a properly convened meeting constitute a quorum for the transaction of business, and a majority of that quorum have authority to represent the corporation." (Morawetz on Corp. § 476; 2 Kent's Com. *293; Field v. Field, 9 Wend. 395.) By subdivision 5, section 11, General Corporation Law (Laws of 1892, chap. 687), a corporation by its by-laws may "fix the amount of stock which must be represented at meetings of the stockholders in order to constitute a quorum, unless otherwise provided by law.” Under that authority the ferry company enacted the following by-law: "A majority of the stock present in person or by proxy at any meeting of the stockholders shall constitute a quorum.' The stock of this company appears to be equally divided between two antagonistic interests, the petitioner, the New York Investment and Improvement Company, owning one-half, and the Staten Island Rapid Transit Railroad Company the other half. At the elections in dispute the petitioner did not attend either in person or by proxy, and at such elections the directors were chosen by a vote of only one-half the stock. If the by-law quoted applies to the case of elections for directors, then we agree with the Special Term that the elections were invalid. But we are of opinion that this by-law cannot affect or control elections for directors. The power granted the corporation to prescribe by its by-laws the amount of stock which must be represented at a meeting of the stockholders to constitute a quorum is expressly limited to cases where it is not otherwise provided for by law. By section 20 of the Stock Corporation Law (Laws of 1892, chap. 688) it is provided: “The directors of every stock corporation shall be chosen from the stockholders at the time and place fixed by the by-laws of the corporation by a plurality of the votes of the stockholders voting at such election." If an election of directors is to be considered a meeting of the stockholders, within the terms of section 11 of the General Corporation Law, then the provisions of the section last cited control; and it is the right of any number of stockholders, however small may be their holdings, provided they hold a plurality of the stock voted, to choose direct App. Div.] ors. SECOND DEPARTMENT, APRIL TERM, 1897. It cannot be seriously contended that the company could, by its by-laws, modify this statutory direction, and require that a majority of the votes of the whole stock of the corporation should be necessary to elect a director, or even that a majority of such stock should vote at the election. If it could not require that a majority of the stock should vote at an election to constitute it valid, it could not, by fixing the amount of stock necessary to represent a quorum, enable stockholders to defeat an election by staying away. The effect in both cases is practically the same. If a by-law may require that a majority shall be present to render a valid election, I do not see why it might not require the presence of a far greater proportion and render regular elections impracticable. It may be said that this argument is also applicable to corporate meetings other than elections, as to which the by-law concededly may prescribe the requisite of a quorum. As to such meetings, however, there is little danger to be feared from this source, for practically no propositions, other than elections, are submitted to stockholders' meetings which have not had the previous approval of the board of directors. The statute carefully provides against the failure to elect directors. By section 24 of the General Corporation Law, if the regular election has not been held on the day designated, it is made the duty of the directors to forthwith call a meeting of the members of the corporation for the purpose of electing directors. If such meeting is not called and held within a month or, if held, results in a failure to elect directors, any member of the corporation may call a meeting for the purpose of an election. By section 25 of the same act it is provided that at such meeting the members attending shall constitute a quorum, and not only elect directors, but adopt by-laws and transact any other business which may be transacted at an annual meeting of the corporation. Thus, in the end, a plurality of votes cast, however few voters there may be, will elect the directors. I cannot believe it was the intent of the statute to allow any different rule to prevail at the elections which must precede that called by a stockholder. The order appealed from, so far as it sets aside the election of 1896, should be reversed, and the application be denied; so far as it denies the application in respect to the election of 1895, it should SECOND DEPARTMENT, APRIL TERM, 1897. [Vol. 15. be affirmed, with ten dollars costs and disbursements to the respondent company. All concurred, except GOODRICH, P. J., not sitting. Order, so far as it sets aside the election of 1896, reversed, and application denied; so far as it denies application in respect to election of 1895, affirmed, with ten dollars costs and disbursements to respondent company. ELLEN STACEY, Respondent, v. THE METROPOLITAN ELEVATED RAILWAY COMPANY and THE MANHATTAN RAILWAY COMPANY, Appellants. Damage by an elevated railroad - —an abutter, not showing depreciation, must show that his property has not shared in the general increase of value — not that the railroad has changed the character of the street. An abutter upon the line of one of the New York elevated railroads, who shows no depreciation in the value of his property, is not entitled to recover damages unless it is made to appear that by reason of the presence of the railroad he has not obtained the enhancement in price which might naturally be expected from the increase and growth of the city, and in which other property in the vicinity, off the line of the roads, has shared. He is not entitled to recover damages resulting from the fact that the presence of the elevated railroad has changed the character of the street, but only for the injuries caused by the presence of the structure before his house, and the operation of the trains thereon so far as the same affect the light, air and access to the property. APPEAL by the defendants, The Metropolitan Elevated Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of June, 1896, upon the decision of the court rendered after a trial at the New York Special Term. This appeal was transferred from the first department to the second department. Merrill W. Gallaway and Julien T. Davies, for the appellants. James C. Van Sielen, for the respondent. App. Div.] CULLEN, J.: This is the usual abutter's action for damages occasioned by the construction and operation of an elevated railroad on Second avenue, in the city of New York. The premises consist of a house and lot on the east side of the avenue, near One Hundred and Twenty-fifth street. The improvements on the lot are a three-story and basement, high-stoop, brownstone house, twenty feet wide by forty-two feet in depth. The learned judge at Special Term awarded no recovery for diminution of the rental value, but allowed the plaintiff the sum of $2,500 for the depreciation of the fee. We think the evidence was insufficient to justify this award. The testimony is meagre. The expert examined for the plaintiff testified that in 1872 the value of the property was about $12,000, in 1879 about $10,000, in 1881 about $8,000, and at the time of giving his testimony of the same value. The railroad was constructed in front of the premises in the year 1878. On crossexamination the witness further testified that he did not mean to say that values on Second avenue had depreciated since 1880, but, on being further probed, we think he substantially conceded that the value of the lots, apart from improvements, in this portion of Second avenue, had nearly doubled in the period from 1880 to · 1895. The witnesses for the defendant testified that the value of plaintiff's property was greater now than at the time of the construction of the elevated railroad. There being no depreciation in the value of plaintiff's property, she was not entitled to recover damages unless it was made to appear that, by reason of the presence of the railroad, she had not obtained the enhancement in price which might naturally be expected from the increase and growth of the city, and in which other property in the vicinity, off the line of the road, had shared. We think this was not shown. It is true the value of the plaintiff's property as a whole has appreciated but little, but the explanation of this is entirely plain. The improvement on the plaintiff's lot is unsuited to the present condition of the neighborhood. The lot itself has doubled in value, but its advantageous use would now be as the site of a shop with tenement apartments above. The locality being no longer desirable for single residences, the plaintiff's building counts for little, if anything, in the value of the whole property. This change in the character of SECOND DEPARTMENT, APRIL TERM, 1897. [Vol. 15. the locality has been caused by the advance of business, and it may be also by the presence of the elevated railroad. So far as the elevated railroad may have changed the character of the street, any injury suffered from that cause is indirect and gives the plaintiff no right to recover. She is entitled to recover only for the injury to her premises, caused, not by the change in the character of the street, but by the presence of the structure before her house, and the operation of the trains thereon, so far as the same affect light, air and access to her property. No injury has proceeded from this cause, for it appears by the testimony of the plaintiff that the elevated railroad has not diminished or injuriously affected the rent which she has received from the property used as a private dwelling. The judgment appealed from should be reversed and a new trial granted, costs to abide the final award of costs. All concurred. Judgment reversed and new trial granted, costs to abide the final award of costs. JOHN ABEL, Respondent, v. LIVINGSTON DISBROW, Appellant. Broker - he cannot act for both seller and purchaser — the objection of double employment cannot be raised for the first time upon appeal — what objection is insufficient to raise it. A broker employed to effect the sale of property cannot act for the purchaser also, unless with the consent and full knowledge of the vendor. If he does act for the other side without such consent he forfeits any claim to compensation. Semble, that where in an action by a broker against his principal to recover compensation for his services the objection of double employment is not pleaded nor raised on the trial, it cannot be raised for the first time upon appeal; it is not raised by a motion made at the close of the plaintiff's case to dismiss the complaint upon the ground that no cause of action has been made out. APPEAL by the defendant, Livingston Disbrow, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of June, 1896, upon the verdict of a jury, and also from an order learing late the 16th day of June, 1896, and entered |