Sillcocks v. New York Elevated Railroad — 46 N.Y. St. Rep. 671

Majority

p. 671

Warren S. Sillcocks, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

(New York Common Pleas, General Term,

Filed June 6, 1892.)

Headnote

1. Railroad—Elevated—Evidence.

In an action against an elevated railroad, opinions of experts as to whether the erection and operation affected the fee value of abutting property is inadmissible.

2. Same—Benefits.

It is error in such an action to exclude evidence of benefits resulting from the operation of the road.

Appeal from judgment in favor of plaintiff.

Action in equity against the Mew York Elevated Eailroad. Company and the Manhattan Bail way Company for an injunction against the maintenance and operation of defendants’ railroad in Park Eow, in front of plaintiff’s property, and for past damages. The plaintiff obtained judgment awarding an injunction, and damages, from which the defendants appeal.

Brainerd Tolles, for app’lts; Leo C. Dessar, for resp’t.

This action was tried several years ago, and before the law in regard to opinion evidence and accruing benefits, was settled.

In order to establish the fact and amount of damages to his property from the erection and operation of defendants’ railway, plaintiff called George B. Curtis, a real estate expert, and asked him the following question:

“ Q. And in your opinion do these physical effects affect the-fee and rental value of these premises? A. It has an effect upon the fee and rental value in my opinion.

“Q. What is that effect?" A. To lessen the rental and fee value.”

Again, after testifying that the increase in values had been greater on Printing House Square and several other places than it was on Park Row, he was asked:

“ Q. Why, in your opinion, based upon your experience, has not this property increased as much over the price of 1872 as the other properties you have mentioned?” and he answered: “ The maintenance and operation of the elevated railroad is the' reason, in my opinion, and the interference with air, light and so forth.”'

Both of these questions were duly objected to by the defendants as incompetent and irrelevant, as calling for the conclusion of the witness upon a subject upon which it was possible for the court, and proper for it, to form its own conclusions, and also as being indefinite and uncertain. The court overruled the objections, and allowed the answers to be given. These answers were clearly the opinion of the witness, and fall under the condemnation of McGay v. Metropolitan El. R. Co., 40 St Rep., 668 ; Wallach v. Manhattan R. Co., id, 669; Delafield v. Manhattan R. Co., id., 670 ; and also of McGean v. Manhattan R. Co., 117 N. Y., 219 ; 27 St. Rep., 337 ; Avery v. N. Y. Central R. R. Co., 121

p. 672

N. Y., 31 ; 30 St. Rep., 471 ; Roberts v. N. Y. El. R. R. Co., 128 N. Y., 455 ; 40 St. Rep., 454 ; Doyle v. Metropolitan El. R. Co., 128 N. Y., 488 ; 40 St. Rep., 474 ; Cray v. Manhattan R. R. Co., 16 Daly, 510 ; 35 St. Rep., 32 ; aff’d, 128 N. Y., 499 ; 40 St. Rep., 478 .

The court also ruled that evidence of benefits was to be disregarded, and refused to find the fact of benefits; which was error under Purdy v. Man. El. R. Co., 36 St. Rep., 43 ; McGay v. Met. Elev. R. R. Co., supra; Welsh v. N. Y. El. R. R. Co., 35 St. Rep., 35 ; Gray v. Manhattan R. Co., supra.

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

Bischoff and Pryor, JJ., concur.