Nordlinger v. Manhattan Railway Co. — 28 N.Y.S. 361

Majority

p. 361

(77 Hun, 311.)

NORDLINGER v. MANHATTAN RY. CO. et al.

(Supreme Court, General Term, First Department.

April 13, 1894.)

Headnote

Evidence—Fact on Opinion.

A question as to whether a structure in front of premises occupied by witness “cuts off any light” from the premises calls for a fact, and not an opinion.

Appeal from judgment on report of referee.

Action by Jacob D. Nordlinger against the Manhattan Railway Company and the Metropolitan Elevated Railway Company. From a judgment dismissing the complaint on the merits, with costs, plaintiff appeals. Reversed.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

E. W. Tyler and E. A. Hibbard, for appellant.

Julien T. Davies and Sherrill Babcock, for respondents.

The purpose of this suit was to procure an injunction enjoining the defendants from the maintenance of their elevated railway in front of plaintiff’s premises, and also to obtain, as incidental to the decree of injunction, an assessment of the past injuries to the rental value. A station of the defendants is situated at the corner of Forty-Second street and Second avenue, and the platform of the station extends the full length of the building. The issues presented by the pleadings were referred to

p. 362

-a referee to hear and determine. After the hearing, he determined that the plaintiff had not been injured by defendants’ station, a,nd ‘dismissed the complaint. Among the findings of fact upon which -he based his conclusions of law was the following:

“No substantial interference with the air or light of said premises has been shown to result directly from the maintenance of the railway structure of ■the defendants in said avenue.”

But that is what the plaintiff apparently attempted, although ■ineffectually, to prove. A tenant in the building in question being ■under examination, the plaintiff asked him:

“Q. Now, then, will you state whether or not this platform in front of .your store cuts off any light from the front part of the store? The question is whether any more light would come to it if that structure and station was ■not there, or if the light is cut off by it. (Objected to by defendants’ counsel, on the ground that it calls for an opinion of the witness upon a state of facts that does not exist. The referee sustained the objection, and counsel ■for the plaintiff duly excepted.)”

The objection was not well taken. The question called for a fact. Whether an awning or an elevated railway platform overhanging ■a window “will cut off any light” is a fact easily within the grasp of the average intellect. As the error is one calling for reversal, we need not discuss the other, exceptions to which our attention Tías been called. The judgment should be reversed, with costs to the appellant, to abide the event. All concur.