
    John H. Rose, Respondent, v. The New York and Harlem Railroad Company and The New York Central and Hudson River Railroad Company, Appellants.
    
      Park avenue, New York city — liability of the railroads Using it, resulting from, the erection of the railroad viaduct — testimony as to the value of property on neighboring streets—judgment, when reversed because incompetent testimony was admitted — when not.
    
    The liability of the New York and Harlem Railroad Company and of the New York Central and Hudson River Railroad Company to an owner of property abutting upon Park avenue, in the city of New York, for the 'damages sustained by him in consequence of the erection of a railroad viaduct in such avenue, is not affected by the fact that the viaduct structure is wholly within the lines of the subway in the avenue through which the roads of the railroad companies formerly ran. '
    
      Semble, that, in an action brought by such abutting owner to recover the damages sustained by him, it is improper to allow witnesses to testify, for the purposes v of comparison, as to the course of values of property on neighboring streets and avenues.
    
      
      Semble, that, where a judge presiding at the trial of an action at Special Term admits incompetent, evidence, an appellate court should, where the evidence was material and affected the result of the action, reverse a judgment rendered against the party offering such incompetent evidence, notwithstanding the declaration of the trial judge that he did not consider the incompetent evidence when deciding the case.
    Where, however, there is other evidence sufficient to sustain the judgment, it will not be reversed.
    Appeal by the defendants, The New York and Harlem Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New. York on the 7th day of October, 1902, upon the decision of the court rendered after a trial at the New York Special Term.
    
      Alexander S. Lyman, for the appellants.
    
      J. C. Bushby, for the respondent.
   Patterson, J.:

The plaintiff was the owner of the premises No. 1754 Park avenue, at the southwest corner of One Hundred and Twenty-second street, in the city of .New York. He sued for an injunction and for incidental damage to the property by reason of the impairment of his easements due to the erection of the viaduct on Park avenue, above One Hundred and Sixth street, for the roadway of the defendants’roads. The general question of liability was determined by the Supreme Court of the United^ States in Birrell v. New York & Harlem R. R. Co. (198 U. S. 390). It is sought to distinguish that case from this, on the ground that there is a substantial difference, consisting in the fact that here the structure complained of is wholly within the lines of the former depressed cut through which these roads were operated, while in the Birrell case some of the structure.was outside of those lines. Ido not see that that is a matter of any consequence. • It can make no difference whether the viaduct is or is not wider than the old subway. The general rule of liability in either event would be the same.

It is further objected that the amounts awarded are excessive. In this, as in all cases of the kind, the testimony as to damages is unsatisfactory. The plaintiff’s expert witness, whose qualifications were admitted,-testified. that in 1892 the fee value was $37,000; that in 1896, after trains began to be operated on this viaduct, it was $31,450, and at the time of the trial was $24,790, The defendants’. expert witness plainly knew nothing whatever about the subject. It is clear that he was not acquainted with the. fee values in that. neighborhood. He says that such fee value in 1892 was $34,000 ; in 1894 it was $34,000, and in 1901, $34,000. The court allowed as fee damage the sum of $4,000, and it might properly have allowed more.

As to the damage to rental value the allowance was $2,000. There is evidence to show that there was a decline in rents after the viaduct was put up, and there is also .evidence that there were some vacancies in the apartments in the plaintiff’s houses. The rents ■ were higher in 1892 than at subsequent periods. From 1892vto 1897 the total yearly rents received were $3,672.- Trains began, to run on the viaduct in February, 189,7, and the. rental damages awarded were from February 16,1897, to March 21,1901, the date of the trial. The rental values undoubtedly have declined and, as said before, some of the apartments were not rented. It is suggested.' ■ that the award of $2,000 is a guess," but it is the same kind of a. guess (as we have frequently had occasion to remark) that is indulged in. all the- elevated railroad . cases. What was said in Sander v. State of New York (182 N. Y. 400) sufficiently indicates where liability rests for decline in rental values.

A serious point is as to the admission of evidence of the course of values .on other avenues and streets. . Witnesses were allowed to testify as to property on Madison and Lexington avenues for the purposes' of comparison. In Fries v. New York & Harlem R. R. Co. (57 App. Div. 577) it was expressly held by this court that evidence of that character was admissible! The opinion was written by Rumsey, J., and concurred in by Justices O’Brien, i Ingraham and Hatch, Van Brunt, P. J., dissenting.. Subsequently the Court of Appeals (169 N. Y. 270) considered the question on the appeal in, the same case, and in the opinion of that court by O’Brien, J., that evidence was condemned. It is said that that was not a decision of the" whole court, because Chief Judge Parker .and Judge Landón only concurred in the opinion of Judge O’Brien, while Judge Martin concurred in the result and wrote a separate opinion in which the point was not mentioned. As Judge. Martin, in his separate opinion, did not mention the point, I think it is fair to infer that he concurred.with the other three judges in their view concerning it. It is said, however, that the same point was involved in Lewis v. New York & Harlem R. R. Co. (162 N. Y. 202), but there is no discussion of that point in the opinion therein. My own view is that the evidence was incompetent, but we should not reverse the judgment upon that ground, if there is sufficient other evidence to sustain it. It appears to me that there is. It is altogether based upon the testimony of expert witnesses, but they speak directly as to the decline in rental and fee values, without regard to the property situated in neighboring streets. The trial judge in deciding the case stated that he had not considered the evidence concerning the course of values in neighboring streets. The Court of Appeals in Robinson v. N. Y. Elevated R. R. Co. (175 N. Y. 219) held that, notwithstanding such a declaration of a trial judge, where the evidence was improperly admitted, the judgment would be reversed when it was material and affected the result. That is an authoritative decision, but this judgment may be sustained on the ground that upon such evidence as was admitted, without objection or exception, these damages may be allowed.

The judgment should be affirmed, with costs.

O’Brien, P. J., Ingraham, Laughlin and Clarke, JJ., concurred.

Judgment affirmed, with costs.  