American Bank Note Co. v. Metropolitan Elevated Railway Co.

We think that this judgment must be reversed because of errors in the admission of evidence; and also because of error in reference to an allowance for damages to personal property.

This action was brought to enjoin the operation of the elevated •road unless they should pay for easements which had been taken by them in the street in front of the plaintiff’s premises and by which the said premises had been depreciated in value.

The plaintiff’s corporate business is that of bank note engraving and printing, which business is one requiring good air and light, free from dust and other impurities of a like character. The plaintiff gave evidence tending to show the valué of the machinery fixed and unfixed which was contained in the part of the building covered by the» suit in question, and of damages to the machinery, plates, paper, processes and business thereof arising from interference with the light by the erection of the defend.ants’ ’structure and also arising from the cinders coming from the engines used in operating the defendants’ road. The learned court gave judgment in this action for such damages to the personal property of the plaintiff. This we think was error. .No damages of this class can be recovered in an action such as the one at bar as incidental thereto. This action, as has already been stated, is to restrain the running of the road unless they paid the value •of the easements taken, which value is to be ascertained by. ■determining the depreciation of the plaintiff’s premises caused by reason of the erection and operation of the road.

As incident to such an action past damages in the shape of -diminution in rental or usable value of the premises occasioned by this continuing trespass have been allowed. But in no case

Error seems also to have been committed upon the part of the learned court in allowing evidence of the opinion of witnesses in respect to the amount of damage done by the operation of defendants' railroad. Various witnesses were allowed to give their estimates as to the annual damages arising from the various causes which were mentioned as interfering with the plaintiff’s business. The effect of the admission of such testimony seems to have been realized by the learned court in a finding which was to the effect that the testimony of plaintiff’s experts is disregarded and excluded as to all matters of opinion except where the opinion is a matter of personal experience and personal knowledge of the1 expert as shown by prior and later testimony.

But this finding by no means cured the error. It is impossible for the appellate court to determine how much of this objectionable testimony was considered by the court, and how much it considered to be matters of personal experience as shown by later and prior testimony, and how much was not so fortified. The only way in which evidence can be removed from the record is to strike it therefrom, so that the appellate court may know what is intended to be excluded, and not leave it entirely to inference.

The claim is made that a recovery by this plaintiff for damage to another portion of the building erected upon these premises by an elevated railroad running upon another street is a bar to a recovery in this action. We do not think that any such claim can prevail. These roads were erected by different corporations, and although one of the defendants, the Manhattan Company, has become the lessee of both roads, and is a defendant in both actions, yet the ultimate rights of the parties are different. Notwithstanding the lease, their ulterior remedies, if they should fail in obtaining satisfaction from the Manhattan Company, would be against each of the other companies separately, and in respect thereto they would have .no community of interest, and it would have been improper to have joined them in the same action.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event

O’Bbien and Pattebson, JJ., concur.