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Bohlen v. Metropolitan Elevated Railway Co.

59 N.Y. Super. Ct. 565 27 Jones & S. 565 Court N.Y. Super. Ct. Decision date 1891-05-04 English

Contents

Majority

p. 565
HENRY BOHLEN, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

Headnote

Omission to note in margin of proposed findings. There were on behalf of defendants thirty-five proposed findings of fact and fifteen proposed findings of law; the trial judge found the thirty-fourth proposed finding of fact and noted it, he then noted the following refusal at the foot of the proposed findings: “To each request the court refuses to find except as found." Held sufficient.
Effect of evidence—Requests to pass on the effect of evidence is improper practice—A passing on all the requests in a general way is sufficient for all practical purposes.
Evidence as to damages. Plaintiff called■ as a witness a real estate broker ■ who testified that the present fee value of the property affected as it was by the structure of the elevated railroad and the operation on it of steam railway was a certain sum. Plaintiff then asked him what in his judgment would be the fee value if the property was not so affected; also what
■ in his judgment was the fair rental value of the premises as so affected, and what would have been the rental value if they toere not so affected. The questions were objected to. The first question was objected to as hypothetical, speculative and incompetent. To the others there was a general objection specifying no grounds. The objections were overruled.
The cause was tried by the court without a jury. Abundant evidence of an unobjectionable character was given as to the damage. Defendant asked similar questions in the course of the'trial. Held, no error calling for a reversal of the judgment.
Before Sedgwick, Ch. J., Freedman and McAdam, JJ.
Decided May 4, 1891.
Appeal from a judgment.
Davies & Rapallo, attorneys, and Julien T. Davies and J. C. Thomas of counsel, for appellants.
Sackett & Bennett, attorneys, and Charles Gibson Bennett of counsel, for respondent.
p. 566
The Court (McAdam, J., writing) held as stated in the head-note, on the ground (as to the third proposition) among others, that the case came within the rule that on a trial by the court without a jury improper testimony may upon reflection be disregarded or stricken out without producing any effect or causing any injury whatever.

Sedgwick, Ch. J., and Freedman, J., concurred.