
    James Mooney, Resp’t, v. The New York Elevated Railroad Co. and The Manhattan R. Co, App’lts.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed April 7, 1890.)
    
    I. Raimo ads—Injunction—Damages. .
    Plaintiff’s lot was covered by two buildings, the rear one facing another street. The railroad did not extend in front of this. The court admitted evidence of the rents received from this building and included it in the estimate of damages. Held, error.
    
      2: Same.
    The evidence showed that the market wagons left the street in 1880, and that the trade attracted thereby followed them. The court allowed as damages for the construction of the railroad the whole difference between the values of plaintiff’s premises before and after such construction. Meld, J, error.
    3. Same—Evidence.
    • A real estate agent testified that he could not rent property on that street; that not one in twenty would take it “on account of the elevated road. That is what they told me." Held, error to refuse to strike out the ¡words “ on account of the elevated road.”
    t Appeal from judgment of this court rendered at an equity term, awarding plaintiff an injunction restraining defendants from the further maintenance and operation of their elevated railroad in front of the premises ISTo. 399 Greenwich street, in the city of ISTew York, unless defendants, within thirty days, pay or tender to the plaintiff $7,000. Judgment for $6,054.22 damages was also awarded to plaintiff.
    
      Davies & Bapallo, for app’lts; Charles Qibson Bennett, for resp’t.
   Daly, J.

The judgment should be reversed and a new trial ordered, because the court allowed damages for a rear building, which was not shown to be affected by the operation of the elevated railway, or the maintenance of its structure; and also because the •amount for damages and for injury to the fee value was excessive.

The plaintiff’s premises are situated on the northeast corner of Greenwich and Beach streets. The lot is 25 feet in width on Greenwich street and 100 feet in depth on Beach street, and is ■covered by two buildings, one of which is built in the rear of the lot in Beach street, is 25 by 50 feet, is wholly unconnected with the building fronting on Greenwich street, and has its entrance and receives its light and air from Beach street. The elevated railroad structure does not extend in front of this rear building.

The court did not distinguish between the front and rear buildings in its finding of the effect of the elevated structure and the operation of the road upon the plaintiff's premises, and admitted upon the trial, and against the objection of defendants, evidence of the rents received from such rear building. It is also apparent from the description of the premises in the findings, which were found to be affected by the structure and operation of the road, that the rear building was included in the estimate of damage caused by defendants.

It also appeared in evidence that the rental value of the premises was unfavorably affected by other causes than the construction, maintenance and operation of the elevated road, yet the court allowed the plaintiff the whole difference, as testified to by plaintiff’s witnesses, between the values of the premises before and after the construction of the road. The evidence shows that part of the decrease in rents, after the roads went into operation, must have been due to changes in the business character of the "neighborhood. Up to the time the elevated roads were built or until about 1880, market wagons congregated in this part of Greenwich street, and a large trade was attracted to the stores in the neighborhood in consequence. Since 1880, the marketmen have gone up to the new market at “ Fort Ganesvoort,” and the trade has followed them. This circumstance does not appear to have been given due weight in determining the actual damage occasioned by the elevated roads.

There seems, also, to be a good exception to a refusal to strike out hearsay testimony of a witness for plaintiff. The witness Mr. Myers, a real estate agent and expert, testified as to Greenwich street property; “I cannot rent it; not one out of twenty who comes there will take Greenwich street on account of the elevated road. That is what they told me.” Defendants moved to strike out the words “ on account of the elevated road,” which should have been granted.

The refusal of the court to allow evidence on behalf of defendants of the decline in rents of neighboring property would have been error, had not defendants previously objected to plaintiff’s, showing the decrease of values in the immediate neighborhood. Their objection was that the evidence was incompetent, irrelevant, immaterial, not within the issue, and not the proper measure of damages.” The objection was sustained, and such evidence on plaintiff’s behalf having been excluded on their objection, they could not be permitted afterwards to offer evidence of the same character. For the other errors, however, the judgment should be. reversed, and a new trial ordered, with costs to abide event

Bischoff, J., concurs.  