Hine v. Manhattan Railway Co. — 33 N.Y. St. Rep. 758

Majority

p. 758

Charles S. Hine, Resp’t, v. The Manhattan Railway Co., Appl’t.

(New York Superior Court,

General Term,

Filed November 3, 1890.)

Headnote

Trial—Evidence.

Where the decision of the court is sustained hy competent evidence, the judgment -will not he reversed on account of the admission of incompetent evidence which did not prejudice the appellant.

Appeal from a judgment of this court in favor of plaintiff, rendered after a trial of the issues at an equity term. The judgment awards to the plaintiff the sum of $8,824.92 damages, and contains an injunction restraining the defendants from the further maintenance and operation of their elevated railway in front of the premises Mo. 13 Bowery, unless, within a time fixed by the judgment, they pay to the plaintiff the sum of $12,500.

Appellants contend that the fee of the street is in the city, and also that the trial judge erred in admitting evidence of offers made to the plaintiff for the purchase of his property prior to the construction of the elevated railroad, and in admitting hearsay evidence as to sales of property upon the Bowery.

Brainerd Tolies, for app’lt; Wm. IT. Arnoux, for resp’t.

The appellant relied on two exceptions taken to the admission of evidence.

The first exception is to the ruling of the court, overruling an objection to a question asked of the plaintiff as to offers that he had received for the property in 1871, or 1872. That this evidence was incompetent to prove the value of the property is clear, but the value of the property in 1871 or 1872 was not the main

p. 759

issue involved in the case, and while we think it was error to overrule the objection, it does not follow that the judgment should be reversed. As was said in McGean v. The Manhattan R. R. Co., 27 N. Y. State Rep., 339 : “ The court must be satisfied upon an examination of the whole case that the appellant was prejudiced by the admission of the evidence to warrant a reversal”

This was an action in equity for an injunction to restrain a continuing trespass. The evidence justified the judgment for an injunction, and at the request of defendant the court undertook to ascertain the value of the premises appropriated by the defendant, so that on the payment of the value of such property the inj unction could be dissolved. The amount which the court fixed as the value of the property appropriated by the defendant was abundantly sustained by competent evidence. An examination of the case has convinced us that the defendant was notj prejudiced by this testimony.

The same may be said of the other testimony, an exception to the admission of which the defendant relies on.

The defendant’s witness Hawes also testified to the sale; there was a difference between them of only $500, Martine saying it sold for $29,000, and Hawes, the defendant’s expert, saying that it sold for $29,500.

Whether it was one or other was evidently immaterial. The question as to the right of the plaintiff in a street opened during the occupation of this city by the Dutch is settled in this court, and we have nothing to do but follow former decisions.

On the whole case we think that no error was committed which calls for a reversal, and the judgment should be affirmed, with costs.

Freedman, J., concurs.