Gutman v. New York Elevated Railway Co.

Judgment reversed'and new trial ordered before another referee to he appointed by this court, with costs to appellants to abide event.

It seems to be conceded by the respondent that evidence, and upon an examination of the record a considerable amount thereof, was admitted in this action for the purpose of proving damage, of a character which was condemned by the Court of Appeals in the case of Jamieson v. Kings Co. El. Ry Co., recently decided. It is impossible for us to say that such evidence did not influence the referee, or that he would have come to the same conclusion had it not been presented before him for consideration. It may be true that the evidence in question was of a character such as lias been presented in various of these cases which have been affirmed by the Court of Appeals. But that court seems in the case last decided to have finally come to the conclusion that it is necessary to enforce the rules of evidence which commonly obtain, even in an elevated railroad case in this city; and we see no reason for dissenting from this conclusion. The case at bar, as already stated, is clearly within the rule laid down in the Jamieson case, and the judgment must, therefore, be reversed and a new trial ordered before another referee to be appointed by this court, with costs to the appellants to abide the event.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.