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FOLLETT, J. The defendants insist that the plaintiff's present estate began May 1, 1881, after the elevated road was in operation, and that he must be deemed to have taken his lease with reference to its existence, and that he is not entitled to injunctive relief for any permanent injury to the easements appurtenant to his estate, nor to damages caused by the operation of the road since that date. On and prior to May 1, 1881, Simon and David Witmark were possessed of an estate for years in Nos. 324 to 330 Ninth avenue, together with the right of renewal for two terms of 21 years each under four leases, one for each lot. On the date last mentioned the four old leases were given up, and five new ones were taken in their places, and it is insisted that this amounted to a surrender of the leasehold estate created by the original leases. A surrender is a falling of a lesser estate into a greater, like an estate for years into an immediate remainder in fee. The estate held by the Witmarks was one which could be extinguished by a surrender to the owners of the remainder in fee. Neither the surrender nor the destruction of the written evidence of the title to an estate effects a surrender of an estate unless the parties so intend. A deed or lease is not the estate, but only the evidence of it, and the destruction or surrender of the written instrument does not necessarily effect a surrender of the estate. Presumptively the surrender of a written lease by the lessee to the lessor, accompanied by the acceptance of a new lease, effects, as between the parties, a surrender of the estate held under the old lease; but it is a rebuttable presumption, especially as between third parties, and when there is no ground for the application of the doctrine of estoppel. Van Rensselaer v. Penniman, 6 Wend. 571; Lawrence v. Brown, 5 N. Y. 394--404; Coe v. Hobby, 72 N. Y. 146; Abell v. Williams, 3 Daly, 17. In Coe v. Hobby, supra, it was said:
"A surrender is implied, and so effected, by operation of law, within the statute quoted, when another estate is created by the reversioner or remainder-man with the assent of the termor, incompatible with the existing estate or term. In the case of a term for years or for life it may be by the acceptance by the lessee or termor of an estate incompatible with the term, or by the taking of a new lease by a lessee. It will not be implied against the intent of the parties, as manifested by their acts; and, when such intention cannot be presumed without doing violence to common sense, the presumption will not be supported.”
In 1871 the Witmarks paid $52,500 for the leasehold interest in the four lots, and prior to May 1, 1881, they erected on the demised premises a new and valuable building fronting on West TwentyNinth street, and it is unreasonable to presume that they intended to surrender their estate in the premises without any compensation whatever. The transaction of May 1, 1881, was simply a division of the premises into five tenements or lots instead of four, for the purpose of enabling the cotenants to partition their interests as between themselves. The rent reserved by the five leases was the same as that reserved by the four, and the new leases contained the same covenants and conditions as the old ones. The Witmarks did not surrender possession of the premises, and they did not intend to give up their estate created by the original leases, nor did the land
lord understand that it was receiving a surrender of the original estate. It has long been the policy of England and of this state to permit to be surrendered for the purpose of obtaining renewals, without terminating, the estate created by the original leases. 4 Geo. II. c. 28, § 5; 16 Pick. St. 255; 2 Jones & V. Laws N. Y. 240; 1 Rev. Laws, (Kent & R.) 144; 1 Rev. St. p. 744, $ 2. From the evidence contained in the record we think that the referee well found as a fact that the lease of May 1, 1881, simply continued the estate created by the leases on November 30, 1869. When a lease has been taken since the construction of the elevated road it is held that it must be presumed that the rent was fixed with reference to the advantages and disadvantages of the road to the demised premises. Kernochan v. Railroad Co., 128 N. Y. 559, 29 N. E. 65. In this case there is no room for such a presumption, for the ground rent was fixed in 1869, and since that time valuable buildings have been erected on the premises by the Witmarks and their predecessors in the leasehold estate.
No error was committed in receiving in evidence the lease of December 1, 1890, and in permitting the plaintiff to recover damages for the diminished rental value since that date. The new lease was but a renewal of the former one, pursuant to a covenant that it should be renewed, and it continued the original term. Gibbes v. Jenkins, 3 Sandf. Ch. 130; Collett v. Hooper, 13 Ves. 255.
No error was committed in perinitting Marcus Witmark to testify to the valuations placed on Nos. 328 and 330 when the property was divided between the cotenants. There was no evidence that there was any written contract dividing the property, or that there was any written evidence of the price agreed on.
It is urged that the referee erred in permitting Levy to testify that the value of real estate in the avenues and streets near the property in question, and its rental value, had recently advanced. The point of the objection seems to be that the witness should have been required to specify the property to which he referred, and, if sold, the prices for which sold, or, if rented, the prices at which rented during the period covered, so that the referee might judge whether values had risen or fallen. The witness did point out many pieces of property, stating prices at which they had been sold, and the sums for which rented, and clearly showed a sufficient acquaintance with real estate in that vicinity to qualify him to testify as to values. If we should limit the evidence of the value of real estate to actual sales, it would be very difficult, if not impossible, to establish the value of that which, for a long time, had not been in the market. All doubt of the competency of the witness and about his familiarity with the fee and rental value of property in the vicinity of the plaintiff's property was removed by the cross-examination of the defendants' counsel. The rulings challenged by the appellants in respect to the testimony of Beaver and Alexander are entirely unimportant, and the evidence admitted could not have affected the result. The referee found that the plaintiff's leasehold estate is subject to a mortgage owned by Jesse A. Marshall, who is not a
party to the action. By his conclusions of law he directed that the plaintiff should be required to procure a release of her lien upon the easements on receiving the fee damages. The plaintiff's attorney, in entering the judgment, neglected to insert an appropriate provision to that effect. It was not necessary for the defendants to appeal to correct the judgment, which could have been readily done by a motion. However, the plaintiff committed the first fault. It seems to us that the judgment should be modified so as to conform to the referee's decision, and, as modified, affirmed, without costs to either party.
RICHMOND V. SECOND AVE. R. CO. (Supreme Court, General Term, First Department. February 16, 1894.) 1. STREET RAILROADS-INJURIES TO PASSENGERS-INSTRUCTIONS.
Where the court, in response to a request to charge "that it is contributory negligence to step off a moving car incumbered with bundles weighing 50 pounds," replies that “it would have been contributory negligence for the plaintiff to have stepped off that car with bundles which so incumbered him that he could not control his movements as well as he could without the bundles," the instruction given is more favorable than
defendant is entitled to. 2. APPEAL-OBJECTIONS NOT RAISED BELOW.
An objection that plaintiff in an action for personal injuries is not entitled to recover for his diminished earning power during his minority
cannot be raised for the first time on appeal. 3. DAMAGES—WHEN NOT EXCESSIVE.
A verdict for $9,000 for injuries causing the loss of a leg below the knee, where plaintiff was 16 years old at the time, and was earning about $8 a week, and since the accident he had been able to earn very little, is not excessive. Foilett, J., dissenting. Appeal from circuit court, New York county.
Action by Isidor Richmond, by Bessie Richmond, his guardian ad litem, against the Second Avenue Railroad Company, to recover damages for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals. Affirmed.
For former report, see 19 N. Y. Supp. 597.
FOLLETT, J. This action was brought to recover damages for personal injuries inflicted while alighting from one of the defendant's cars, caused, as it is alleged, by the negligence of its employes. At the time of the accident, which was about midday on March 28, 1892, the plaintiff, then 16 years of age, was engaged in selling and delivering chair bottoms. A little before noon of the day mentioned, the plaintiff, with two bundles of chair bottoms, united by a strap, by which they were suspended on his shoulder, entered one of defendant's cars at the corner of Forsyth and Grand
streets. There were 50 chair seats in each bundle, weighing 25 pounds; · 100 seats in all, making the total weight 50 pounds. Shortly after entering he was directed by the conductor to ride, with his bundles, on the front platform. He went forward to the platform, and rode thereon to Tenth street, where it became necessary for him to change, when he was given a transfer ticket, and left the car. When the car came along which the plaintiff desired to take he attempted to board it by the rear platform, but was directed by the conductor to go to the front platform, which he did, carrying his bundles with him. He took the bundles from his shoulder, and placed them on the platform in front of the driver, and near the brake rod. The plaintiff stood on the left side. of the driver, and rode in that position until the car passed Eighty. First street, when he took his bundles from the platform, and placed the strap over his left shoulder. As the car reached the south cross walk at the intersection of Eighty-Second street and First avenue, the plaintiff told the driver that he wished to get off. His bundles were to be delivered at a hardware store, on the west side of First avenue between Eighty-Second and Eighty-Third streets. The car was stopped on or near the north cross walk of Eighty-Second street, and the plaintiff attempted to alight from the left-hand or west side of the car. His bundles were suspended on his left shoulder, and he had hold of the rail of the dashboard with his right hand. Before the plaintiff reached the street the driver loosed the brake, and started the horses, which threw the plaintiff's right leg under the car, where it was crushed so that amputation just below the knee became necessary. The foregoing is the plaintiff's account of the accident.
Another person, subpoenaed by both sides, and called by the plaintiff, who was riding on the platform at the time of the accident, gave the same account of the transaction, except he did not hear the plaintiff request the driver to stop, nor did he see the brake applied. He testified that the car stopped at or near the south crossing of EightySecond street, but he was not certain that it did at the north crossing. He said that he saw the boy preparing to leave the car with his bundles, saw him falling, and heard him cry. When he found him his right hand was grasping the dashboard, and his leg had been crushed. He said that when he (witness) got off the car it had stopped, but he could not tell how far the boy had been dragged. It was his impression that the car stopped as the boy was getting ready to alight. He also testified that the boy's back was towards the horses when he attempted to leave the car. This is substantially all of the evidence in behalf of the plaintiff descriptive of the accident. The driver of the car, who was sworn for the defendant, testified that the boy fell backwards from the car, just as he attempted to place the bundles on his shoulder, and that the car had not stopped, and that he had not been asked to stop it. When he saw the boy fall he applied the brake, and stopped the car before it had moved more than about three-fourths of its length. He then looked for the boy, and found him lying
under the car, with his leg crushed. The conductor of the car testified that he did not direct the plaintiff to ride on the front platform, and that there was plenty of room for him inside the
He testified that the car was not stopped until after the boy fell.
A policeman, who was riding on the front platform at the time of the accident, testified that as the car neared Eighty. First street he saw the plaintiff stooping down to get hold of the bundles so as to get off; that he was then standing with one or both feet on the step of the car; and that he fell or stepped off before the car stopped. This is all of the evidence descriptive of the accident.
There was some conflict in the testimony as to the precise point where the plaintiff fell, whether just below or just above the north cross walk. The court submitted the question to the jury whether the plaintiff attempted to alight with his bundles while the car was in motion, without asking the driver to stop it, and left the questions of the negligence of the defendant's employes and of the contributory negligence of the plaintiff fairly to the jury. Whether the plaintiff fell from the car while putting the bundles on his shoulder, or in attempting to leave it while in motion, or whether his fall was caused by the car being started while he was attempt. ing to leave it, were sharp questions of fact, which turned entirely upon the credibility of the witnesses. There is no inherent im. probability in either version of the accident, and we cannot say that the jury erred in believing the plaintiff's version, rather than that of the defendant's witnesses. The verdict being satisfactory to the learned and experienced trial judge, we are of the opinion that this court ought not to set it aside as against the weight of evidence.
Did the court err in its instructions or refusal to instruct the jury in respect to the plaintiff's right to recover? The defend ant took no exceptions to the charge as delivered, but at its close the usual number of requests—all that could be thought of—were preferred by the respective counsel. We shall consider only those discussed by the appellant. The court was requested to charge “that it is contributory negligence to step off a moving car backwards." The court replied: “Unless the party so stepping is induced to do so by the negligent conduct of the defendant. With that qualification, I charge the proposition.” The defendant excepted to the qualification. We think the instruction was correct, but there is no evidence which would have justified the jury in finding that the plaintiff attempted to alight from the car in that manner. The defendant's driver testified that the plaintiff stood upon one of the steps, and, while attempting to place the bundles upon his shoulder, fell backwards to the street; and we find no evidence in the record that the plaintiff attempted to leave the car by stepping backwards from it to the street. The defendant requested the court to charge "that it is contributory negligence to step off a moving car incumbered with bundles weighing fifty pounds." The court replied: "For me to say that a certain