Benjamin v. New York Elevated Railroad — 44 N.Y. St. Rep. 538

Majority

p. 538

Caroline A. Benjamin, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

(Supreme Court, General Term, First Department,

Filed February 18, 1892.)

Headnote

.1. Reference—Findings .

A referee is not bound to find as an additional finding of fact an inference which may be drawn from established facts which he has found.

3. Railroad—Elevated—Motion to strike out answer.

In answer to a question as to whether he had observed any effect on his

p. 539

business owing to the presence of the elevated road, a witness answered : “Yes, sir; if the railroad was not there I would be taking $100 a day-more than I am now.” Held, that a motion to strike out the answer as not íesponsive and stating a conclusion was properly denied, as it was too broad in asking that the whole answer be stricken out.

3. Same—Evidence.

In an action against an elevated railroad, evidence as to the effect of the road on other premises in the same street, although not exactly similarly . situated to those of plaintiff, is admissible as tending to corroborate the evidence as to the manner in which plaintiff’s premises were injured by the maintenance of the railroad.

Appeal from judgment entered on report of referee.

J. G. Thomson, for app’lts. G. G. Bennett, for resp’t

This action was brought by the owner of premises on Third avenue to restrain the operation of the defendants’ elevated railroad in front thereof, and resulted in a judgment requiring the defendants to pay the sum of $1,700 in exchange for the conveyance of the easements appropriated by them, and allowing the plaintiff to recover from the defendants $646 for past rental damages.

The ground upon which the appeal' is based is that the referee erred in refusing to find that the proximity of defendants’ station at Twenty-eighth street was advantageous to the business portion of the premises in suit and produced a special benefit to the same for business purposes. The referee did find that the presence of defendants’ station at Twenty-eighth street brought a large number of persons daily into Third avenue in the immediate neighborhood of the premises, and' increased the traffic on said avenue at that point, but refused to find, as requested, that “ the fact of the proximity of defendants’ said station at Twenty-eighth street to the premises in suit is advantageous to the business portion of Said premises and produced a special benefit to the same for business purposes.” And an exception was taken to this refusal to find.

We do not see that any error was committed by the referee in this refusal, as it appears that the finding requested was not one .of fact, but an inference to be drawn from facts which he had already found.

We do not understand that the referee is bound to find, as an additional finding of fact, an inference which may be drawn from established facts which he has found.

It is further objected that the referee erred in permitting a witness to express his opinion as to the number of vacancies in houses on Third avenue as compared with houses on streets and avenues where there is no railroad.

Upon examination of the evidence we do not think that this objection is well taken, in that the witness did not testify as to his opinion, but gave evidence as to facts resulting from his knowledge of the occupation of the houses in the neighborhood.

It is urged that the referee erred in permitting a witness to testify as to the relative course of values. on Third avenue and on other streets and avenues. In respect to this objection it is suffi

p. 540

cient to say that it is not raised by any exception taken upon the trial. The testimony related particularly to the course of values on Lexington avenue, and the objection taken was upon the ground that the values upon Lexington avenue were not in issue, and therefore not a proper subject of opinion.

The claim that is now made for the purpose of establishing error in the rulings of the referee, viz. • that the testimony was the expression of the conclusion of the witness, and therefore incompetent, was not taken before the referee. It cannot, therefore, be availed of upon this appeal

The claim of error in the denial of the motion to strike out the answer of the witness as to the amount of business he would do if the elevated railroad were not in front of the premises was not well founded, because the motion was too broad. The witness was asked the question -.

. “ Did you observe any effect on your business there owing to the presence of the elevated railroad; on your liquor business ? A. Yes, sir; if the railroad was not there on Third avenue I would be taking $100 a day more than I am now

The counsel for the defendants objected to the answer as not responsive to the question and as stating a conclusion, and moved to strike it out. The motion was denied, and an exception taken.

It is claimed that the witness ought to have stopped' after the words “yes, sir,” arid that the rest was a gratuitous assertion, and ought to have been ruled out by the referee. But tjie difficulty with the motion was that it asked the referee to strike out the whole answer, and as the result the motion was rightfully overruled.

Meither is the objection that the referee erred in permitting a witness to state the reasons why he changed his building to a hotel well taken.

It may be that the witness’ premises were not exactly similarly situated to those of the plaintiff in this action. But they were affected by the railroad operated by the defendant, and were in the same street, and therefore evidence as to the effect of the railroad upon them tended to corroborate the evidence as to the manner in which the plaintiff’s premises were injured by the maintenance and operation of the defendant’s railroad.

We are of opinion, therefore, that the judgment appealed from should be affirmed, with costs.

O’Brien and Lawrence, JJ., concur.