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Goodenough v. New York, Westchester & Boston Railway Co.

158 N.Y.S. 1116 Court N.Y. App. Div. Decision date 1916-04-14 English

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p. 1116
Arthur T. GOODENOUGH, respondent, v. NEW YORK, WESTCHESTER & BOSTON RAILWAY COMPANY and The City & County Contract Company, appellants.
(Supreme Court, Appellate Division, Second Department.
April 14, 1916.)

Headnote

Judgment affirmed, with costs. If the damages were proven by expert evidence condemned in Roberts v. N. Y. Elevated R. R. Co., 128 N, Y. 455 , 28 N. E. 486 , 13 L. R. A. 499 , they were also proven by the testimony authorized by that decision, and the same result reached. The error, if any, may be disregarded, as the criticized testimony in its result coincides with the authorized testimony. It would be a vain thing to send the case to a retrial, or for this court to reverse the judgment, and thereupon make the same finding rejecting the inadmissible and using the competent evidence.

Jenks, P. J., and Thomas, Carr, and Rich, JJ., concur. Mills, J., dissents upon the sole ground that the construction and operation of a railroad for public use are not within the prohibition of the restrictions.