Saxton v. New York Elevated Railroad — 44 N.Y. St. Rep. 832

Majority

p. 832

James Saxton, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

(New York Superior Court, General Term,

Filed March 14, 1892.)

Headnote

"Raileoad—Elevated—Evidence.

In an action against an elevated railroad, evidence of objections of plaintiffs tenants to their rooms on account of dirt and noise from the-elevated road, not connected with their leaving their apartments or as a reason for not taking them, is inadmissible as hearsay.

Appeal by defendant from judgment entered upon findings, and by judge at special term.

Arthur 0. Townsend, for app’lts; TS. W. Tyler, for resp’t

This is the usual action against the defendants-to enjoin them from maintaining and operating their elevated road, in front of plaintiff’s premises.

On the trial a witness was called who was the janitor of the-building in question. He testified to a reduction of rent through a- course of years. The counsel for plaintiff then asked what

p. 833

daring these years have the tenants stated as the ground of their objection to their Third avenue rooms, and if so have they given substantially the same objection or a variety of objections. The answer, was there is one objection; they made objection referring, to different objects; different things in connection with the elevated road; all the objections refer to the elevated. The objection was-to dirt and noise from the elevated road; they cannot open the-windows because if they do, they get the dirt in their rooms, in the best part of the house in front.

The question that called out this testimony was validly excepted to on the ground that the declaration, of the tenants were hearsay. The declarations did not accompany the tenants leaving apartments and were not the statement of reasons for not taking them. In either of such cases, there might be room to argue that, the declaration was part of a transaction. They were but isolated utterances of different individuals, not under oath or subject to-cross-examination.

There are some questions in this case which perhaps are like-those on the same subject considered in the JBohm and Somers cases. These cases had not been decided at the time of the trial here. It is not necessary to pass upon the question now, as the new trial will be had .under the cases in the court of appeals.

Judgment reversed and new trial ordered, with costs to abide-the event.

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