Shepard v. New York Elevated Railroad — 39 N.Y. St. Rep. 430

Majority

p. 430

Augustus S. Shepard, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

(Supreme Court, General Term, First Department,

Filed June 26, 1891.)

Headnote

1. Tbial—Remabks op counsel at opening.

Where, upon a trial before referees, the counsel for plaintiff made many inconsequent and irrelevant remarks before any testimony had been offered, but it appears the referees were guilty of no misconduct, and made an award of a less amount than was claimed by plaintiff, and such as was sustained by the evidence, a verdict for plaintiff will not be disturbed.

2. Evidence—Opinion—When witness competent.

A witness was asked the value of certain property; it was shown that he had lived in the neighborhood for twenty-five years, and had kept himself well informed of both fee and rental values of property in the vicinity. Held, that the witness was competent to speak as to facts and to give an opinion as to values.

1 3. Appeal—Objections to answeb not baised below.

Where the answer of a witness is not objected to on the trial, it cannot be afterwards raised on appeal that the answer was incompetent.

Appeal from judgment entered on report of referre.

Davies & Ratallo, for app’lts; Peckham & Tyler, for resp’t.

—We see no reason for disturbing the judgment entered upon the report of the reference.

In the opening remarks of counsel on the hearing, which have been excepted to, many inconsequent and irrelevant things seem to have been said, which as they are reported, if they had any weight at all, we would regard as rather tending to prejudice the referees against the plaintiff than prepossess them in his favor. It cannot be inferred that they were at all impressed by the rambling talk which appears to have been the feature of the opening. They were bound to determine the case on its merits. Ho testimony had been offered. It is a very different thing when the proofs are all in and counsel comment on them in such a way as may influence the minds of jurors unfairly, by illegitimate allusion to matters outside the record. When a case is opened there is no record at all and while it is barely possible that before a jury such unchecked statements made at the onset of a trial might affect them, it is incredible that a tribunal composed of experi

p. 431

enced. men, such as these three referees, would, in anyway be governed by what was said before a witness was called, or that after a protracted investigation covering a long period of time, them mature deliberation upon the evidence when it was all before them, would be controlled by a mere wandering opening speech. That would be to hold that the referees were not only unfit to be trusted with the duty devolved upon them, but that they were foolish enough to be affected by what would not influence an inteligent child who understood him to form an opinion upon facts presented to him.' The cases cited by the appellant relate to a different phrase of the question. There is no misconduct shown on the part of the referees. They were patient and tolerant and that is all, and when we come to consider the whole case it is quite apparent they did not make their award in view of what was said" on the opening, but on the contrary fixed an amount very much below that claimed and expected by the plaintiff and much within the limit they might have gone to on the proofs.

An exception was taken to the testimony of the witness Sobel who was asked the value of certain property on Greenwich street in the years 1870 to 1873. The specific ground of the objection was that the witness was incompetent to testify as an expert. We think his examination showed that he was quite competent to speak as to facts and also to give an opinion as to values on Greenwich street. He was an owner of real estate there and in other parts of the city, -he had lived on Greenwich street in the neighborhood of the-premises referred to in the question for a quarter of a century and had kept himself well informed of both fee and rental values of property in that vicinity.

An exception was also taken to a ruling permitting the witness Eddy to answer .a question by which he was asked on redirect examination to state further what was the cause of the fall in values of property on Greenwich street. He was a so called expert witness on behalf of the plaintiff and on cross-examination had been interrogated as to the causes of the advance or decline of real estate in certain localities. It is not argued now that the question was improper. It called for facts and not conclusions of the witness and the plaintiff was entitled to dispel any inference -that might have been drawn from the testimony on the cross-examination as to decline in values, for so far, the causes then stated seemed to be the only operative ones in the judgment of the witness. The answer, is objected to, however, and it is said that it is an expression of an opinion by the witness in one of the issues the referees were to determine. But that answer stands unchallenged. Ro motion was made to expunge it and it went before the referees with the apparent acquiescence of the defendants.

The other exceptions noted on the appellant’s brief as being insisted upon do not require consideration.

Judgment affirmed, with costs.

Van Brunt, P. J., and Barrett, J., concur in result.