Carter v. New York Elevated Railroad — 57 N.Y. Super. Ct. 279

Majority

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OLIVER S. CARTER, et al., Respondents v. THE NEW YORK ELEVATED RAILROAD COMPANY, et, al. Appellants.

Headnote

Evidence, admission of improper, when not cause for reversal.—Expert opinions, admissibility of evidence bearing on their value as testimony.

Although in an action brought to obtain a judgment for a permanent injunction testimony upon that issue adduced by the plaintiffs is improperly admitted, yet if enough other testimony appears which, as matter of law, supports the judgment for an injunction, that judgment will not be reversed.

Where experts have given evidence as to their opinions of the value of certain real estate, the testimony of owners of adjoining real estate, although not experts, as it is called, as to the value placed by them on their respective parcels, is competent.

Where the judgment below adjudges that the defendants be perpetually enjoined from maintaining and operating their railroad in front of plaintiffs’ premises, and adjudges that the structure be removed, and then adjudges that the judgment, in so far as it enjoins and restrains the defendants, shall not be operative until the expiration of ninety days from service, and then adjudges that if defendants shall, within eighty days from service, pay to plaintiffs a certain sum for damages to plaintiffs’ premises, then the judgment, in so far as it enjoins and restrains the defendants, shall not be operative and take effect; the whole judgment should not be set aside because the judge below, in ascertaining the amount so to be paid by defendants, received evidence as to what values owners of premises on the same street attached to their own property, or that of others, even if such reception were erroneous.

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The points of counsel are voluminous and exhaustive. They are too lengthy to be reported in full; and cannot well be condensed with justice to counsel and benefit to the bar. They can be referred to in the library of the court. Reporters.

Before Sedgwick, Ch. J.. and Freedman, J.

Decided November 21, 1889.

Appeal by defendants from judgment entered upon findings made by a judge at special term. The facts sufficiently appear in the head notes and the opinion.

Davies & Rap alio, attorneys, and Edward C. James of counsel, for appellants.

Evarts, Southmayd & Choate, attorneys, and Joseph H. Choate, Thomas T. Sherman and William V. Rowe of counsel, for respondents.

The judgment for the injunction in this case should be affirmed under the decisions that have been made in like cases. If it be assumed that testimony on this issue was improperly admitted, enough other testimony appeared that, as matter of law, supported the injunction under these decisions.

The court below proceeded to ascertain the terms, upon the performance of which by the defendants the injunction might be dissolved, and made rulings as to the evidence on this point, which the appellants now argues were erroneous. These rulings concerned opinions of the owners of adjoining property of the value of such property, they not being experts, as it is called, in estimating the values of real property. But the opinions of experts had been given in evidence, and it was important to ascertain the value as testimony of these opinions. The court

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was at liberty to examine the grounds of such opinions. These grounds were not matter of fact legally proved, and were, in part, at least, the values that the adjoining owners placed upon their property, for the market value would be the resultant of the opposition between buyers and sellers.

The rulings were not erroneous. But, if they were, they did not affect the absolute right to an injunction that the defendants stay their invasion of plaintiffs’ property. The ascertainment of the condition was not due to any equity the defendants had as against the plaintiffs, or because, equitably, the plaintiffs’ right to a permanent injunction was a modified one and not absolute. Substantially the condition was gratuitously made as to the defendants and was allowed for the sake of third parties. The whole judgment should not be set aside because the judge below ascertained what values owners on the street attached to their own property or that belonging to others.

In my opinion the judgment should be affirmed, with costs.

Freedman, J., concurred.