Livingston v. Metropolitan Elevated Railway Co. — 44 N.Y. St. Rep. 830

Majority

p. 830

Julia Livingston, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

(New York Superior Court, General Term,

Filed March 14, 1892.)

Headnote

Railroad—Elevated—Damages—Evidence.

In an action against an elevated railroad, witnesses who have shown their acquaintance with the rents in the vicinity of plaintiffs property, and their competency to testify in relation thereto, may he allowed to testify “Is to the course of rents in general in the neighborhood of the premises in question since the erection of the railroad, and for a few years previous thereto.” Such testimony is not opinion evidence, hut a grouping of facts too numerous to require statement in detail.

Appeal from judgment in favor of plaintiff, entered on the report of a referee.

Olin, Rives & Montgomery (George L. Rives, of counsel), for resp’t; Davies & Rapallo (Herbert Barry, of counsel), for app’lts;

The judgment enjoins the defendants from operating their elevated railway in front of the premises Nos. 76- and 78 West Broadway in the city of New York, but permits the defendants to pay to plaintiff the sum of $4,000, with interest from the date of the report, in avoidance of the injunction; and

p. 831

also awards to plaintiff the sum of $366.66, past damages, together with costs and allowance.

A- careful examination and analysis of the evidence satisfy us that the damages for loss of rent and the allowance in avoidance of the injunction are fully warranted. The evidence shows substantial injury, and the awards are not excessive.

The alleged error, which is urged by the appellants as the principal ground of reversal, arose upon the' admission by the learned referee, under the objections and exceptions of the defendants, of testimony as to “ the course of rents in general on West Broadway, in the neighborhood of the premises in question, since the erection of the elevated railro.ad and for a few years previous thereto.”

This inquiry was addressed to certain witnesses called by the plaintiff, who had previously fully stated their experience and opportunities of observation as to rents of real estate in the vicinity of plaintiff’s property, and had given facts in regard to numerous specific pieces of property as to which they had personal knowledge. They had also given their opinions generally as to past and present values of this and adjacent property. We think the character of the inquiry on the subject of rent and also of fee values, in the questions challenged by defendants, was proper. The questions called for a statement of fact from witnesses who had shown themselves competent to testify in respect of the subject matter under investigation. It was not strictly opinion evidence. It was a grouping of facts too numerous to require statement in detail.

We find no substantial error in the rulings of the referee.

The judgment must be affirmed, with costs.

Sedgwick, Oh. J., and Dugro, J., concur.