Murphy v. Brooklyn City Railroad — 6 N.Y. St. Rep. 47

Majority

p. 47

Catharine C. Murphy, Resp’t, v. The Brooklyn City Railroad, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 14, 1887.)

Headnote

Evidence—Irrelevant.

Plaintiff owes a lot upon which is a building used by him for a dwelling rad store. Defendant has without right put steam motors upon the street in front and the evidence tends to show he so used them as to cast ashes and dust in the hou e, and has made the street so noisy as to be unfit for residence or business. In consequence plaintiff’s business, it is claimed has been diminished. Defendant called as a witness a person living opposite to plaintiff and keeping there a small store and asked her whether as far as she could judge the running of cars in the street affected her business, her answer that it had not injured her was stricken out on objection. Held, that it was properly stricken out, that the very circumstances tending to injure plaintiff’s business might increase that of the witness.

Appeal from a judgment entered on a verdict rendered in favor of plaintiff at the Kings county circuit, and from an order denying defendant’s motion for a new trial on the minutes.

Roswell H. Carpenter and J. C. Rinkel, for resp’t; Morris and Pearsall, for app’lt.

The plaintiff owns a lot of land fronting upon Twenty-fourth street, Brooklyn. There is a building upon it, used for a residence and store by the plaintiff. The defendant Railroad Company, without any right, have put steam motors upon the street in front of his store and dwelling, and, the proof tends to show, have so used these motors as to cast ashes and dust in the house, and made the street so noisy day and night as to make it very uncomfortable, either for a residence or for business purposes. The business has fallen off in the plaintiff’s store from fifty to seventy dollars per week, as it was before the use of the steam motor ten to fifteen dollars per day.

The grievance complained of has continued since November, 1877. The verdict was for $1,000. There is but one point made upon the appeal, as to the admission of evidence. The defendant called as a witness Mrs. Julia Scott. She lived and kept a small store opposite to that of plaintiff, and she was asked this question by defendant:

Q. So far as you can judge, do you think the running of the cars in the street affects your business ?

A. It never injured me in the least.

p. 48

Objection sustained; answer stricken out. Exception taken.

The witness stated that she knew nothing of the effect on the business of the plaintiff, and her opinion as to her own business was properly excluded. As a fact, it had no relevancy, unless under precisely similar circumstances.

The plaintiff was cut off from the witnesses’ side of the street, and Mrs. Scott’s business may have been increased by the very injury inflicted on the plaintiff. Whether the dust and smoke and ashes were placed so as to affect the two places alike does not appear. The case is not like Baird v. Daily ( 68 N. Y., 547 ). The, question was as to the seaworthiness of a scow.

Proof was given tending to show that the scow was good, and it was held -error to refuse the opinion of an expert that she was unseaworthy.

The only point made is that the injury to the business, and the discomfort of the residence, cannot be both reviewed in the action. The complaint is addressed to both subjects.

It avers an injury to the business and building, and such a use of the street by the defendant as to be a great nuisance and damage to the plaintiff.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, J. J., concur.