Gordon v. Kings County Elevated Railway Co.

Majority

p. 51

William Gordon, Appellant, v. The Kings County Elevated Railway Company, Respondent.

Headnote

JSminent domain — suit against an elevated railroad —• opinion of experts as to the cause of a depreciation — cross-examination as to the value of premises other than those in suit — qualification of an expert.

In the ordinary equitable action by an abutting owner against an elevated railroad corporation, an expert may properly express an opinion as to the “ cause of the depreciation, generally, in the fee value of property on Pulton street (Brooklyn) below the City Hall, within the past eight or ten years.” It is proper for expert witnesses to interpret such causal relations of proved facts as are not obvious, without special knowledge of the subject.

In such an action i't is proper, upon the cross-examination of an expert witness as to value, to ask him as to the value of premises other than those in suit.

A witness who has been in a general real estate business for thirty-one years, renting and selling in the locality in question and on the adjoining streets, is competent, although he ma,y not have sold property on the street in question “ prior to the building of the elevated” railroad.

Appeal by the plaintiff, William Gordon’, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of May, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing his complaint upon the merits.

Stephen M. Hoye [James A. Sheehan with him on the brief], for the appellant.

W. C. Percy, for the respondent.

This is the ordinary suit for injunctive relief against an elevated railroad company, and for fee and rental damage arising from the construction and operation of the line.

The learned trial judge dismissed the complaint upon the merits at the close of the evidence on both sides, on the ground that the plaintiff’s premises had not been damaged by the construction or operation of the defendant’s road.

While the evidence does show a diminution in the fee and rental value of the property (No. 325 Fulton street, in the city of Brooklyn) since the railroad was built and began operation, I think there

p. 52

is a preponderance of proof in support of the conclusion that the diminution is due to the general movement of business on Fulton street from below the ■ City Hall to the upper portion of the same street.

Aside from the'questions of fact the appellant argues but three points:

(1) He insists that the court erred in receiving the testimony of an-incompetent witness (Rustin) as to fee and rental values.

This objection rests on the statement of the witness (who gave opinion evidence as to the value of tiré property since the construction of the road) to the effect that he had not sold anything “ prior to the building of the elevated.” The context shows, however, that he was speaking at this time of sales on Fulton street only, and did not mean to retract' his previous statement that he had been in the general real estate business thirty-one years, renting and selling in this location and on the adjacent streets fr.om Sands street up. That testimony fully qualified him as an expert.

(2) It is said that the court erred in permitting the witness James, for the defendant, to’ be asked : “ What, in your opinion, has been the cause, of the depreciation, generally, in the fee value of property on Fulton street below the City Hall, within the past eight or ten years ? ” ■

This was a perfectly proper question for an expert, under the doctrine of the Van Wycklen Case ( 118 N. Y. 429 ). It is for such witnesses to interpret such causal relations of proved facts as are not obvious without special knowledge of the subject.

(3) Finally, it is urged that the court received incompetent testimony from the witness Ooolc as to the value of premises not in suit.

. The answer to this point is; that Cook was the plaintiff’s witness, and the evidence was elicited from him upon cross-examination by the defendant, as was entirely proper.

The judgment should be affirmed.

All concurred.,

.Judgment affirmed, with costs.