Kernochan v. New York Elevated Railroad — 57 N.Y. Super. Ct. 434

Majority

p. 434

JAMES P. KERNOCHAN, Individually and as Executor, etc., et al., Respondents, v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.

Headnote

Evidence—Testimony of experts as to value of real estate in action for an injunction and damages because of the construction and maintenance of the elevated railroad of defendants in front of plaintiffs’ premises.

One of the real estate expert witnesses of plaintiffs was asked by plaintiffs’ counsel on the trial to give the rental value of the premises with and without the elevated railroad, for the years 1883 to 1888, both inclusive. Counsel for defendants objected to the question as incompetent, irrelevant and immaterial, and not within the issues of the action and a proper method of proof. The court overruled the objection, and counsel for defendants excepted, and the witness answered the question fully and in detail.

Held, on appeal, That the question as to the value of the premises at the time was clearly competent. The attention of the court was not called to the objection now urged, that the portion of the question that required the witness to give his opinion as to the rental value of the premises without the elevated railroad was incompetent, and no motion was made to strike out any portion of the answer of witness after it was given, and considerable testimony was subsequently given on the same subject by both plaintiffs and defendants without objection. Under these circumstances the objection to the question in the form it was taken was unavailing, and the

■ ruling of the court thereupon sustained.

Before Sedgwick, Ch. J., and Ingbaham, J.

Decided January 6, 1890.

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Appeal from a judgment entered upon the decision of the court at special term.

Davies & Rapallo, attorneys, and Edward S. Rapallo and Samuel B. Rogers of counsel, for appellants, argued:—

I. The learned trial judge erred in receiving as evidence the opinion of a witness as to the difference in the rental value of the premises in question with and without the elevated' railroad. Edmund H. Martine, a real estate broker, after testifying to the rental value of the property in question in 1876 and 1877, was asked: “ Q. Give the rental value for the following years with and without the road ? Counsel for defendants objected to the question as incompetent, irrelevant and immaterial and not within the issue in this action, and not a proper method of proof. The court overruled the objection, and counsel for defendants duly excepted. A. With the road from 1883 to 1884, $2,550. Without the road, $3,570. In 1884, $2,640 with the road, and $3,600 without it, etc.” We submit that the testimony excepted to was incompetent for the following reasons: (1) It involved the very question of damages to be determined by the trial judge. Van Deusen v. Young, 29 N. Y. 9 ; Teerpenning v. Corn Exchange Ins. Co., 43 Ib. 279; Giles v. O’Toole, 4 Barb. 281 ; Norman v. Wells, 17 Wend. 136 ; Thompson v. Penn. R. Co., 15 Atl. Rep. 833 ; Crane v. Northfield, 36 Vt. 124 ; Railway Co. v. Gardner, 45 Ohio St. 309 . (2) It was a question upon which an intelligent judgment could be had without resort to such opinions. Drucker v. Manhattan R. Co., 106 N. Y. 157 ; Ferguson v. Hubbell, 77 Ib. 514; Reed v. McConnell, 101 Ib. 270; Wakeman v. Wheeler & W. Mfg. Co., 101 Ib. 205. (3) It was a matter of mere speculation and conjecture such as is not involved in any science, art, trade or occupation known to mankind. Fer

p. 436

guson v. Hubbell, 97 N. Y. 514 ; Wesson v. Washburn Iron Co., 13 Allen, 95 . The evidence being in its essential nature incompetent and adapted to mislead, it is impossible to say to how great an extent the defendants were injured thereby, and, within the principle of Foote v. Beecher, 78 N Y. 155 , the error cannot be disregarded.

II. The defendants were harmed by the admission of the expert testimony as to what this property would have been worth had the railroad not been built. We assume that it is now settled that the evidence in question is plainly inadmissible under the recent decision of the court of appeals in the case of McG-ean v. Manhattan Railway Company. The sole question, under the decision of the court of appeals in that case, is whether the appellant was harmed by the admission of such testimony.

6r. Willett Van Nest, for respondents, argued :—

As to Foote v. Beecher, 78 N. Y. 155 , the question is now settled by statute. The code provides (§ 1003): “ An error in the admission or exclusion of evidence, or in any other ruling or direction of the judge upon the trial, may, in the discretion of the court which reviews it, be disregarded, if that court is of opinion that substantial justice does not require that a new trial should be granted.” The note .to Bliss’ code states that the rule of Forrest v. Forrest is hereby adopted. In matter of N. Y; C. & H. R. R. Co., 90 N. Y. 347 , the court says : “ The rule is well settled that in an equity case a new hearing will not be granted or judgment reversed merely on the ground that proper evidence was rejected at the trial, if on all the facts and circumstances the court is satisfied, the result ought not to have been different if such testimony had been received.’’ The objection to Martine’s testimony is of no avail, as it is not disputed that the plaintiff was entitled to the

p. 437

evidence as to the value with the road. An objection should be taken to the part of the question which was improper, if any. Hochreiter v. People, 2 Abb. Ct. of App. 363; Mayor v. Secord, 102 N. Y. 582 . No question arises in this case under the McGrean case. The only objection to the question asked Martine was that his estimate included damages by noise and other incidents than light and air.

There was no objection to plan. The plaintiffs were entitled to Martine’s estimate of the value with the road. The defendants should have objected specifically to the part asking the value without.

All the questions presented on this appeal have been passed upon by the general term of this court adversely to the defendants, except the objection to the question put to one of the experts called by the plaintiffs, whereby the witness was requested to “ give the rental value for the following years with and without the road.”

To that question the defendants objected as “ incompetent, irrelevant and immaterial, and not within the issues of this action and not a proper method of proof.”

The objection was to the whole question, and so' far as the question required the opinion of the witness as to the value of the property at the time, the evidence was clearly competent. The attention of' the court was not called to the objection now urged, that the portion of the question that required the witness to give his opinion as to the rental value of the premises without the elevated railroad was incompetent, and no motion was made to strike out any portion of the answer after it was given. Considerable testimony was subsequently given on the same subject by both plaintiffs and defendants without objection.

Under these circumstances we think the objection

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in the form it was taken was unavailing. An examination of the whole case has satisfied us that the findings are sustained by the evidence, and the result would have been the same if the evidence now objected to had not been received.

We think, therefore, that no error was committed that requires a reversal of the judgment, and that the judgment should be affirmed with costs.

Cases cited

Van Deusen v. Young 29 N. Y. 9 N.Y. p. 435
Norman v. Wells 17 Wend. 136 N.Y. Sup. Ct. p. 435
Drucker v. Manhattan Railway Co. 106 N. Y. 157 N.Y. 1887-06-07 p. 435
Foote v. Beecher 78 N Y. 155 N.Y. 1879-09-16 p. 436