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Kahn v. New York Elevated Railroad

57 N.Y. St. Rep. 509 Court N.Y.C.P. Decision date 1894-02-05 English

Delivered by Bischoff, J.

Contents

Majority

p. 509
Herman Kahn, Resp’t, v. The New York Elevated Railroad Company et al., App’lts. Rosanna Mooney, Resp’t, v. Same, App’lts.
(New York Common Pleas, General Term,
Filed February 5, 1894.)

Headnote

1. Elevated Railway—Easements.
The refusal of a referee to find that the easements in the street in front of, or appurtenant to, the land, possessed only a nominal value apart from the land itself, is a harmless error, where the referee did in fact eliminate from consideration any value of the easements more than nominal.
2. Appeal—Evidence.
An exception to a refusal to strike out evidence does not present error where the motion is not confined to the objectional portion.
Re-argument of defendants’ appeal from a judgment for plaintiff for injunctive relief and damages for loss of rentals which was entered upon the report of a referee.
Action by an abutting owner to restrain the maintenance and operation of defendant’s elevated railroad and for damages to the rental value of his premises.
J. Aspinwdll Ilodge, Jr., for resp’t; R. L. Maynard for appl’ts.

As the evidence and exceptions in the above entitled actions are substantially alike these appeals were argued as one, and they are, therefore, disposed of by us in like manner. Upon the former argument the several judgments were directed to be reversed for a supposed material error of the referee in refusing

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to find at the request of defendants’ counsel that the easements in the street in front thereof, and appurtenant to, the land affected by these actions possessed only a nominal value apart from the land itself. This was upon the authority of the ruling in the Bookman case, 137 N. Y. 302 ; 50 St. Rep. 703 , and Sutro case 137 N. Y. 592 ; 50 St. Rep. 701 , which at the time had only been announced. Subsequent decisions of the court of appeals, all of which are referred to in the opinions of the court in the Siruthers and Lindheim cases, 54 St. Rep. 785 , 788, clearly point out that the error is a harmless one and so inoperative for reversal, if notwithstanding the refusal to find as stated, it affirmatively appears from the record that in estimating the amount of consequential or fee damages the trial court or referee did in fact apply the proper measure of damages and eliminated from consideration any value of the easement more than nominal. That the referee in deciding the actions did not mistake the measure clearly appears from his “ thirty-fifth ” finding of fact, which is as- follows in each case: “ The permanent value of the premises described in the complaint has been depreciated by the appropriation of the easements of-light, air, and access caused by the road opposite to said premises ” to the extent of the sum fixed in the several cases under review to be paid by defendants as an alternative for the injunctive relief to which the plaintiffs were respectively adjudged entitled. Nothing, therefore, was awarded for the easements themselves and only the effect of the taking of the easements upon the remaining land was considered.

The sufficiency of the evidence in support of the several sums awarded for both fee and rental damages has been heretofore affirmed by us. Kahn case, 3 Misc. R. 611; 51 St. Rep. 255 ; and Mooney case, 3 Misc. R. 612; 52 St. Rep. 256 ; and our further scrutiny only aids to confirm the views already expressed.

In the Mooney case the supposed typographical error in the decision and judgment by which it was made to appear that the past damages were computed from October 20th, 1888, the time of the commencement of the action, instead of October 20th, 1882, six years prior thereto, which was alluded to in the opinion on the former argument is obviated by the referee’s supplemental report, and the entry of a corrected judgment on. January 21st, 1893. In the Kahn case the error remains. The evidence, however, amply justifies plaintiff’s recovery for six years prior to the commencement of the action and the time which elapsed subsequent thereto. Bearing this in mind, the amount awarded is not excessive, and as the judgment recovered will, 'in any event, bar plaintiff from successfully claiming past damages for the time anterior to the commencement of the action which the judgment concludes, the date from which the damages are alleged to have been ’ computed is immaterial, and its recital may therefore be treated as surplusage.

In the Mooney case plaintiff’s counsel asked the expert, Curtis, “ Do you know anything about the sale of 316 prior to the last sale? to which the witness responded, “ Yes, sir; not to my own knowledge; they were transferred in 1869 or 1870 for $14,000

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or $15,000 several of the houses, that is from the Beal Estate Be-cord and Guide. Thereupon defendant’s counsel moved that the whole answer be stricken out on the ground that the matters testified to were not within the witness’ own knowledge, and as hearsay. The exception to the referee’s denial of the motion does not present error for the reason that defendant’s counsel should have pointed out the particular part of the witness’ answer which was objectionable as hearsay and confined his motion as to that. The first part of the answer was clearly responsive to the question and not objectionable on the ground stated. McCabe v. Brayston, 38 N. Y. 196 ; People v. Beach, 87 N. Y. 508 , 512; Tuomey v. O'Reilly, Skelly & Fogarty Co., 3 Misc. R. 302, 306; 52 St. Rep. 119 . The remaining exceptions appear equally without merit.

The judgments should severally be affirmed, with costs.

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