
    Lena Kopetzky, Respondent, v. The Metropolitan Elevated Railway Co. et al., Appellants.
    (New York Common Pleas
    General Term,
    November, 1895.)
    A referee has power to strike out specific evidence on the motion of the party who introduced it, although objections and exceptions to its admission had been taken by the opposite party.
    The fact that the witness testified falsely as to an immaterial point does not necessarily require that his entire testimony should be rejected, especially where he is not contradicted upon material points and is to some, extent corroborated.
    In an action for injunctive relief against an elevated railroad, it is not error to refuse to find that the alleged inconvenience or injury resulting from the road is due in part to the noise occasioned by the trains, where there is no proof of the amount of injury flowing from this cause and the recovery is based merely upon the decline of rents and fee values due to the numerous and unspecified causes which were the effect of the road as operated.
    In such an action the court refused to find that the territory in the vicinity had been largely built up since the construction of the road, and that such condition was caused by its operation. Held, no error; that these matters were immaterial and the requests presented only an abstract question.
    Appeal from a judgment entered upon the report of a referee.
    
      Julien T. Davies and George T. Aldrich, for appellants.
    
      Abraham, Gruber and Ralph Shaw, for respondent.
   Bischofe, J.

Plaintiff brought this action for damages and an alternative injunction to restrain the operation of defendants’ elevated railway in front of her premises, situated in Second avenue between Sixtieth and Sixty-first streets. From a judgment rendered in her favor the defendants appeal and present the following points:

(1) That the damages awarded are excessive.

■ As to this, we must hold that the testimony given by the witness Freund, with regard to fee values, and Kopetzky, with regard to the actual rents received, -taken together with the other evidence of the state of rents in the locality and of the ratio of fee to rental value, sufficiently supports the finding of the referee. Defendants’ evidence would, if adopted as the true basis for computation, make the award appear excessive, but we find no injustice in the judgment as based upon the plaintiffs evidence.

(2) That the referee erred in granting the plaintiff’s motions to strike out specific evidence, to the admission of which .objections and exceptions had been taken by defendants’ counsel.

' It was certainly within the power of the referee to take this course (Am. Bank Note Co. v. Met. El. Ry. Co., 63 Hun, 506) and we mus’t assume that he determined the issués irrespective of such evidence. Nette v. N. Y. El. R. R. Co., 13 Misc. Rep. 218; Chesebrough v. Conover, 140 N. Y. 382. The remaining evidence is amply sufficient to support his determination.

(3) That plaintiffs witness Kopetzky should have been discredited'by the referee, and hence the proof as to rental damage should have failed.

This contention is based upoá Kopetzky’s direct contradiction of his own testimony, subsequently during the trial, upon a point immaterial to the, issue.

It certainly would appear that this witness deliberately swore to a falsehood in this instance, but we are not to say that his entire testimony was necessarily to be rejected for that reason.- He was not contradicted upon the question of rents received, and was, in a measure, corroborated by the testimony of the plaintiffs expert as to fee value and its ratio to rental value. The referee might have discredited the testimony had he seen fit; but, as appears, he did not. The rules applicable to the facts in this case do not call for our denunciation of the decision upon this ground. Lee v. Chadsey, 2 Keyes, 545; Dunn v. People, 29 N. Y. 529 ; Deering v. Metcalf , 74 id. 501; People v. O’Neil, 109 id. 266.

(4) That it was'error for the referee to refuse defendants’ request to find that the alleged inconvenience or injury resulting from the maintenance and operation of defendants’ railroad is due in part to the noise occasioned by the trains on said railroad.” It is claimed that, there being uncontradicted evidence in support of this proposed finding, it should have been so found in order that a deduction for the damage thus sustained might have been made, since a recovery for damages by reason of noise is not to be had in this class of actions. Am. Bank Note Co. v. El. R. R. Co., 129 N. Y. 252, 273. But what deduction ? There was no proof as to. the amount of injury flowing from this cause, and while, as in the case last cited, it must be held that an affirmative judgment, based in part upon an express item of damage for noise, requires modification in so far as to strike out that item, we cannot see how the finding of defendants’ request could have availed in this case, the recovery being based merely upon the decline in rents and of fee value, due to the numerous and unspecified causes which were the effect of the road as maintained and 1 operated.

The refusal- of the requests to find that the territory in the vicinity had been" largely built up since the construction of this railway, and that such condition was caused by its operation, presents no error. These matters were immaterial and the requests dealt with an abstract proposition which the referee was not required to pass upon. Moreover, it is impossible to say that the result would have necessarily been affected had the findings been made. Baldwin v. Doying, 114 N. Y. 455. If of any avail, the findings related solely to the question of general benefits, and there was nothing upon which an allowance for such benefits could have been based, the plaintiff’s evidence with regard to values being found acceptableby the referee and a substantial decrease of value being' thereby shown. The rule, stated in the JEette case, supra,, and in Struthers v. N. Y. El. R. R. Co., 5 Misc. Rep. 239, applies.

The judgment must he affirmed, with costs'. ' - -

„ Daly, Ch. J., and Peyoe,' J., concur.

Judgment affirmed, with costs.  