
    The American Bank Note Co., Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 31, 1892.)
    
    1. Railroad—Elevated—Damages to personal property.
    In an action against an elevated railroad to restrain its operation and for damages to easements, damages for injuries to personal property arising- , from interference with the light and from cinders cannot be recovered.
    3. Same—Improper evidence—How cured.
    The admission of opinion evidence is not cured by a finding that it is-disregarded as to all matters except where the opinion is a matter of personal experience and knowledge of the expert, as shown by prior and later testimony. The only way in which improper evidence can be removed from the record is to strike it therefrom.
    3. Same—Bar.
    A recovery for damage by an elevated road running upon one street is not a bar to an action to recover damages to another portion of the same building caused by a different railroad running upon another street, although one of the defendants is the lessee of both roads.
    Appeal from judgment of the special term enjoining the operation of the defendants’ road unless fee damages be paid, and .also awarding a sum for past damages.
    
      E. 0. James, for app’lts; W. Q. Peckham, for resp’t.
   Yan Brunt, P. J.

We think that this judgment must be reversed because of errors in the admission of evidence; and also because of error in reference to an allowance for damages to personal property.

This action was brought to enjoin the operation of the elevated •road unless they should pay for easements which had been taken by them in the street in front of the plaintiff’s premises and by which the said premises had been depreciated in value.

The plaintiff’s corporate business is that of bank note engraving and printing, which business is one requiring good air and light, free from dust and other impurities of a like character. The plaintiff gave evidence tending to show the valué of the machinery fixed and unfixed which was contained in the part of the building covered by the» suit in question, and of damages to the machinery, plates, paper, processes and business thereof arising from interference with the light by the erection of the defend.ants’ ’structure and also arising from the cinders coming from the engines used in operating the defendants’ road. The learned court gave judgment in this action for such damages to the personal property of the plaintiff. This we think was error. .No damages of this class can be recovered in an action such as the one at bar as incidental thereto. This action, as has already been stated, is to restrain the running of the road unless they paid the value •of the easements taken, which value is to be ascertained by. ■determining the depreciation of the plaintiff’s premises caused by reason of the erection and operation of the road.

As incident to such an action past damages in the shape of -diminution in rental or usable value of the premises occasioned by this continuing trespass have been allowed. But in no case has the court gone so far as to hold that damages to personal property might be recovered in an action of this description. The action in question is one relating entirely to the realty, and has no reference to any question as to personal property, and if any damages have been sustained by personal property which the plaintiff can recover against the defendants it must be by an action of a different nature.

Error seems also to have been committed upon the part of the learned court in allowing evidence of the opinion of witnesses in respect to the amount of damage done by the operation of defendants' railroad. Various witnesses were allowed to give their estimates as to the annual damages arising from the various causes which were mentioned as interfering with the plaintiff’s business. The effect of the admission of such testimony seems to have been realized by the learned court in a finding which was to the effect that the testimony of plaintiff’s experts is disregarded and excluded as to all matters of opinion except where the opinion is a matter of personal experience and personal knowledge of the1 expert as shown by prior and later testimony.

But this finding by no means cured the error. It is impossible for the appellate court to determine how much of this objectionable testimony was considered by the court, and how much it considered to be matters of personal experience as shown by later and prior testimony, and how much was not so fortified. The only way in which evidence can be removed from the record is to strike it therefrom, so that the appellate court may know what is intended to be excluded, and not leave it entirely to inference.

The claim is made that a recovery by this plaintiff for damage to another portion of the building erected upon these premises by an elevated railroad running upon another street is a bar to a recovery in this action. We do not think that any such claim can prevail. These roads were erected by different corporations, and although one of the defendants, the Manhattan Company, has become the lessee of both roads, and is a defendant in both actions, yet the ultimate rights of the parties are different. Notwithstanding the lease, their ulterior remedies, if they should fail in obtaining satisfaction from the Manhattan Company, would be against each of the other companies separately, and in respect thereto they would have .no community of interest, and it would have been improper to have joined them in the same action.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event

O’Bbien and Pattebson, JJ., concur.  