Gutman v. New York El. Railroad — 36 N.Y.S. 647

Majority

p. 647

GUTMAN v. NEW YORK EL. R. CO. et al.

(Supreme Court, General Term, First Department.

December 18, 1895.)

Headnote

Elevated Railroads—Damages to Abutters—Evidence.

Where the referee, in an action for damages from the operation of an-elevated railroad, admits evidence as to damages for which plaintiff is-not entitled to recover, a judgment for plaintiff will be reversed.

p. 648

Appeal from judgment on report of referee.

Action by Emma Gutman against the New York Elevated Railroad Company and another to enjoin the operation of defendants’ railroad in the street in front of plaintiff’s premises, No. 737 Third .avenue, and for damages. There was a judgment in favor of plaintiff, and defendants appeal. Reversed.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

Sidney Smith, for appellants.

W. G. Peckham, for respondent.

It seems to be conceded by the respondent that evidence, and, upon an examination of the record, a considerable .amount thereof, was admitted in this action for the purpose of proving damage, of a character which was condemned by the court of appeals in the case of Jamieson v. Railway Co. (recently decided) 41 N. E. 693 . It is impossible for us to say that such ■evidence did not influence the referee, or that he would have come to the same conclusion had it not been presented before him for consideration. It may be true that the evidence in question was of a character such as has been presented in various of these cases which have been affirmed by the court of appeals. But that court .-seems in the case last decided to have Anally come to the conclusion that it is necessary to enforce the rules of evidence which -commonly obtain, even in an elevated railroad case, in this city; .-and we see no reason for dissenting from this conclusion.

The case at bar, as already stated, is clearly within the rule laid down in the Jamieson Case; and the judgment must therefore be reversed, and a new trial ordered before another referee, to be appointed by this court, with costs to the appellants to abide the ■event.