
    JAMES SAXTON, Respondent v. THE NEW YORK ELEVATED RAILROAD COMPANY, et el., Appellants.
    
      Damages caused by elevated railroad—Hearsay evidence of statements of tenants as to physcial annoyance.
    
    In an action to recover an injunction and damages with respect to real property abutting upon a street occupied by defendants’ elevated railroad, the janitor of premises upon the same street was called as a witness for the plaintiff and testified, against objection, that the question called for hearsay evidence, that tenants objected to dirt and noise from the elevated railroad; that they cannot open the windows because if they do they get the dirt into the rooms in the best part of the house, in the front; and that such objections had been going on six or seven years. Held, that such evidence was hearsay and improperly received.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, ,JJ.
    
      Decided March 14, 1892.
    Appeal by defendants from a judgment entered upon decision of judge after trial at special term. The action was to recover an injunction and incidental damages by reason of defendants’ elevated railroad in Third avenue in the city of New York, with regard to abutting property owned by plaintiff. The trial judge awarded an injunction, fixed a sum as compensation which defendants might pay to plaintiff to obviate the same, and directed judgment for rental damages. The facts are sufficiently stated in the opinion.
    
      Davis & Rapallo, attorneys, and Arthur O. Townsend of counsel, for appellants.
    
      Peckham & Tyler, attorneys, and E. W. Tyler of counsel, for respondent.
   Per Curiam.

This is the usual action against the defendants to enjoin them from maintaining and operating their elevated road in front of plaintiff’s premises.

On the trial a witness was called who was the janitor of the building in question. He testified to a reduction of rent through a course of years. The counsel for plaintiff then asked what during these years have the tenants stated as the ground of their objections to their Third avenue rooms, and if so, have they given substantially the same objection or a variety of objections. The answer was, there is one objection, and they made objection referring to different objects—different things in connection with the elevated road. All the objections refer to the elevated. The objection was to dirt and noise from the elevated road ; they cannot open the windows, because if they do, they get the dirt in their rooms, in the best part of the bouse in-front.

The question that called out this testimony was validly excepted to, on the ground that the declarations of the tenants -were hearsay. The declarations did not accompany the tenants leaving apartments, and were not the statement of reasons for not taking them. In either of such cases there might be room to argue that the declaration was part of a transaction. They were but isolated utterances of different individuals not under oath or subject to cross-examinations.

There are some questions in this case which perhaps are like those on the same subject considered in the Boehm and Somer’s cases. These cases had not been decided at the time of the trial here. It is not necessary to pass upon the questions now, as the new trial will be had, under the cases in the Court of Appeals.

Judgment reversed and new trial ordered, with costs to abide the event.  