Malcolm v. Metropolitan Elevated R. Co. — 36 N.Y. St. Rep. 741

Majority

p. 741

Mary Malcolm, Resp’t, v. The Metropolitan Elevated R. Co. et al., App’lts.

(New York Common Pleas, General Term,

Filed February 2, 1891.)

Headnote

1. Railroads—Elevated—Evidence.

Where a witness for the defendants, in an action to restrain the operation of an elevated railroad, has testified that plaintiff’s premises have not been materially injured by the railroad, it is proper to ask him on cross-examination how much his own property in the neighborhood had been damaged thereby, for the purpose of testing the soundness of his judgment.

2. Same.

An agreement for the sale of the property in question is admissible in such an action to show the duration of the plaintiff’s estate and also that the cause of action sued upon did not pass with the estate but was reserved to the plaintiff, where it contains such a provision, and hence a general objection to its admission is ineffectual. To render an objection available in such case it should discriminate the inadmissible parts.

Appeal from judgment on a verdict and from order denying motion on the minutes for a new trial.

Action to recover damages for injury to the rental value of plaintiff’s property from the maintenance and operation of defendants’ railway.

Plaintiff was owner of a life estate only in the premises, and that estate was terminated by sale 17th July, 1886, between which date and the date when the statute of limitations attached to the cause of action, a period of four years, two months and five days intervened; and it was damages during this interval only that plaintiff was allowed to recover.

Brainard Tolies, for app’lts; Artemas B. Smith, for resp’t.

For reversal of the judgment appellants rely exclusively upon two exceptions to the admission of evidence ; and

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the decision of the appeal depends upon the validity of those exceptions.

A witness, owner of a stable adjacent to the premises in question, was allowed, against an objection and exception by appellants, to testify to the amount of injury inflicted on his property by defendants’ railway. As evidence in chief for plaintiff this testimony was clearly incompetent; because, first, the question of specific injury to the property of the witness was wholly foreign from the issue as to injury to plaintiff’s property; and secondly, the opinion of a witness as to the amount of damage is always inadmissible, because a distinct and direct intrusion upon the province of the jury. But, the impeached testimony was not offered or received as evidence in support of plaintiff’s case; and the question is, was it legitimate upon cross-examination?

The witness, introduced for the defense, lived in the house in controversy, and in reply to counsel for appellants testified' that: The elevated railroad don’t bother me much ; I have not found it a serious inconvenience to my living there.” On disclosure of the fact that witness owned a stable in the same street and in proximity to the premises in question, and that he had brought suit against the railroad company for damages to that stable, he was asked on cross-examination: “ How much do you think the elevated road has damaged your stable ?”

On cross-examination, “ a witness may be asked any questions which tend to test his accuracy, veracity or credibility.” Stephen’s Digest of Evidence, art. 129; 1 Grreenl. on Evi., 446. “ The range and extent of cross-examination is, as a general rule, within the discretion of the court, subject to the limitation that it must relate to matters pertinent to the issue, or which tend to discredit a witness or impeach his moral character.” People v. Oyer & T., 83 N. Y., 438 . Within the limits thus authoritatively defined by the court of appeals, the interrogatory under criticism was indisputably legitimate. An opinion of the witness that specific property was not materially affected by the operation of a given cause would certainly be in some measure invalidated by an opinion of the witness that other property subjected to the influence of the same cause was thereby injured to an enormous degree. The discrepancy of opinion plainly affects the consistency and soundness of his judgment, and, indeed, affords legitimate ground for challenging his veracity.

Again, upon the supposition that the testimony given was incompetent, for a technical reason the exception under review is unavailable for reversal of the judgment. The question was: “ How much do you think the elevated road has damaged your stable?'' Objection by defendants. The witness replied: “ I consider that the elevated road has hurt my business $20,000.” An obviously irresponsive answer, as to which no motion was made to strike it out, or request to direct the jury to disregard it. The objection was nugatory. Platner v. Platner, 78 N. Y., 91 .

Equally untenable is the other of the two exceptions upon which appellants rely. Plaintiff introduced the agreement for the sale of the property in question; defendants objected to the ad

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mission of “ the agreement ” in evidence; but the court received it and defendants excepted. But, manifestly, the document was competent evidence to show, first, the duration of plaintiff’s estate, and so the period for which she might recover damages; and secondly, that the cause of action upon which she sues did not pass with the estate, but was reserved to plaintiff. Portions of the paper being competent evidence, a general objection to the entire instrument is ineffectual; but appellants should have discriminated the inadmissible parts and leveled their exceptions exclusively against them.

The provision of the agreement which defendants distinguish as obnoxious evidence is the clause purporting to reserve from the grant of the property a right in plaintiff to sue for future damages ; but the court expressly instructed the jury that the plaintiff could not recover for such damages; and so the error, even if available on the record, was obviated.

Judgment and order affirmed, with costs.

Balt, Ch. J., and Bischoff, J., concur.