Waldie v. Brooklyn Elevated Railroad

This is a land damage suit or action for loss of fee and rental value, in respect of premises on Adams street, in the city of Brooklyn. The defendant’s railroad was constructed and commenced to be operated in 1888. The premises consisted of a three-story and basement brick building, with brownstone trimmings, thirty-five feet deep by twenty and one-half feet front; lot fifty feet deep. The motions made in this case, to send it to the Circuit for trial, or to stay the suit until the damages were ascertained by commissioners, were properly overruled. (Bee opinion in the case of Hart and others against the same defendants, decided at this General Term, ante, p. 259.) There is no-merit in the exception to the answer of tho witness, who testified that the cinders and dust turned the house black. It was more a fact than an opinion; at any rate the court could not havebeen misled to the prejudice of the defendant; such matters are largely in thhe discretion of the court, and where the case is tried before the court without a jury, there is less chance of a decision being made erroneous by the testimony, whether it comes in the form of an opinion or conclusion, or stated as a mere fact. As to the-amount of damages, we think there is evidence sufficient to support the conclusion arrived at by the judge who tried the case, and even if the damages were more we should find we would not be justified in reversing the judgment, which was based upon a trial by a judge who-saw the witnesses, and heard them testify, and could better judge of their truthfulness, fairness and judgment than we can. We cannot see that there can he any objection as to the form of the judgment. It appears plainly enough that the court has assessed the damages upon the evidence. What it decided was the extent to which the property was depreciated by interference with the light and air and access to the premises. The amount of damages was a mere fact, which the court has found. We think the judgment should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.