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Colton v. New York Elevated Railroad

58 N.Y. St. Rep. 809 Court N.Y.C.P. English

Delivered by Bischoff, J.

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p. 809
Charles H. Colton et al., Pl’ffs, v. New York Elevated Railroad Company et al., Def’ts.
(New York Common Pleas, Special Term,
Filed February 1894.)

Headnote

Evidence—Expert.
Expert testimony, in elevated railroad cases, is incompetent, except on cross-examination, to elicit opinions or facts as to fee and rental value of specific pieces of property other than the premises in suit.
This was one of the usual actions for an injunction and damages caused by the taking of easements by the elevated railroad,
p. 810
Upon the trial of this action at the February special term, before Mi*. Justice Bischoff, certain questions were asked by plaintiff’s counsel of an expert witness as to the fee and rental value of premises along Bast Thirty-fourth street, where the property in suit was located other than the premises in suit. This evidence was objected to on the part of the defendants “ on the ground that an estimate of the fee value in other property than that in suit upon the line of defendants’ elevated railroad is contrary to the law as laid down by the court of appeals, in the Matter of Thompson, 127 N. Y. 463 ; 40 St. Bep. 200.”
The evidence was admitted, but a motion by defendants’ counsel to strike out was afterwards entertained, argument was had and time was allowed for the submission of briefs, and thereafter the motion was granted and the evidence stricken from the record, and the court rendered the following opinion :
J. Aspinwall Hodge, Jr., for pl’ffs; B. L. Maynard, for def’ts.

Under the ruling of the court of appeals in Matter of Thompson, 127 N. Y. 463 ; 40 St. Rep. 200 ,1 shall feel bound to reject evidence of the prices paid upon actual rentals and sales of particular premises, other than the premises in suit, when it is offered, •except on cross-examination. Though the case referred to holds specifically only that the prices paid upon salesof particular premises other than the premises in suit, though in the immediate vicinity, furnish no radical criterion by which to determine the value of the last mentioned premises, I am unable, upon reflection, to discover any sufficient reason for holding that the criticism of the proffered evidence by the court does not apply with equal force to rentals. The principle underlying the decision was applied in Blanchard v. N. J. Steamboat Co., 59 N. Y. 292 , 300 ; Gouge v. Roberts, 53 N. Y. 619 , both cases of chattel property.

With reference to my intimation that the testimony of plaintiff’s witness, Martine, concerning his opinion of the fee and rental value of particular premises, other than the premises in suit should be stricken out, I deduce the following, from principle and authority:

1. A witness engaged in the business of buying, selling, renting or appraising real estate, and shown to be possessed of the requisite qualification derived from bis experience, may testify directly to his-opinion concerning the value of the premises in suit at different periods. Clark v. Baird, 9 N. Y. 183 ; People ex rel. Mayor, etc., v. McCarthy et al., 102 N. Y. 630 -639; 2 St. Rep. 546 ; Roberts v. N. Y. El. R. R. et al., 128 N. Y. 455 , 465 ; 40 St. Rep. 454 ; Rogers on Expert Testimony, §155, p. 195.

2. He may likewise testify directly to his opinion whether or not fee and rental values generally and in the vicinity of the premises in suit have diminished or increased since particular periods, and to what extent. Drucker v. Man. El. R. R., 106 N. Y. 157 ; 8 St. Rep. 599 ; Golden v. Met. R. R., 1 Misc. R. 142 ; 48 St. Rep. 725 ; Sherwood v. Met. R’y Co., 36 St. Rep. 195 ; Livingston v. Met. R’y Co., 44 St. Rep. 830 . The admissibility of the first mentioned testimony arises from the necessity of the case, the

p. 811
premises in suit being sui generis. The testimony secondly mentioned tends to prove the course of values, and is relevant and material to the question at issue, namely, whether or not the premises in suit have sustained pecuniary damage. Its competency is likewise due to the fact that the witness has special learning and skill in such matters which he has derived in his particular calling whereby he is required to keep himself informed thereof.

3. The testimony of a witness called as an expert must, however, as in the cases of other witnesses, be confined to' the points in issue, Eogers on Expert Testimony, § 88, p. 87; Stephen’s Dig. Law of Ev., art. 49. The value of particular property other than the property in suit is irrelevant, Demarest v. El. R. R., Law, p. 161; Blanchard v. N. J. Steamboat Co., 59 N. Y. 292 , 300 ; Gouge v. Roberts, 53 N. Y. 619 . Hence the vritness cannot be examined with regard thereto.

4. But, as with other witnesses, one called as an expert to give Ms opinion may be interrogated concerning matter otherwise irrelevant for the purpose of impeaching his credibility or disproving the accuracy of his opinion on cross-examination. The cross-examining party is, however, bound by the statements of the witness concerning such collateral matter, and may not contradict him. Rogers on Expert Testimony, § 38, subd. 4, p. 88; People v. Ryan, 55 Hun, 214 , 218 ; 27 St. Rep. 916 and cases there cited ; Gandolfo v. Appleton, 40 N. Y. 533 ; Rice on Evidence, vol. 1, p. 632.

It follows that the testimony of plaintiff’s witness, Martine, with regard to Ms opinion concerning the fee and rental values of particular premises other than the premises in suit, was inadmissible on the direct examination, and that the objection of defendants’ counsel thereto should have been sustained. I do, therefore, reverse my ruling, direct that the objections be sustained and the testimony objected to he stricken out. Plaintiff may, of course, take an exception to this ruling.

In what I have said I do not wish to be understood that it is improper to interrogate the witness, called as an expert, on the direct examination concerning the fact of sales and rentals made by him generally or in the vicinity of the premises in suit, and to require the witness to state the particular property sold or rented by him. I mean only to exclude evidence of the sums paid upon such sales or rentals. The fact of sales or rentals by the witness goes to his competency as an expert, and evidence thereof is for that reason admissible.

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