
    John D. Schmidt, Appellant, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Respondents.
    
      Elevated railroads of New York — a witness cannot testify that their construction increased the value of property.
    
    In an action brought by an abutting owner to recover, of the elevated railroad companies of New York, damages for the taking of easements appertaining to real property, it is improper .to allow the defendant to ask a witness what effect the construction of the elevated railroad had upon the value of the premises. That question is one to be decided by the court or á jury, and not by the opinions of witnesses. ■
    Appeal by the plaintiff, John D. Schmidt, from a judgment of the Superior Court of the city of New York, entered in the office of the clerk of said court on the 6th day of August, 1895, upon the decision of the court rendered after a trial at a Special Term thereof directing judgment in favor of the plaintiff for six cents damages and awarding costs to the defendants.
    
      diaries P. Oowles, for the appellant.
    
      James G. BusJiby and JuUen T. Drnies, for the respondents.
   Van Brunt, P. J.:

This action was brought by an abutting owner to recover dam- ' ages for the taking of certain easements appertaining to his premises and for an injunction. Upon the trial the court decided that the plaintiff had not established any right to relief, and gave the judgment above indicated.

It will not be necessary to consider the facts of this case at any length, because there are some exceptions which are fatal to the judgment. Testimony was offered upon the part of the defendants for the purpose of showing that the building of the elevated railroad tended to increase and add to the value of property situated upon the line of the road. This evidence was objected to upon the part of the plaintiff; the objection was overruled, and an exception was taken. It seems to have been held at the instigation of the defendants in repeated cases in the Court of Appeals (Roberts v. N. Y. Elev. R. R. Co., 128 N. Y. 455 ; McGean v. Manhattan R. Co., 117 id. 219) that such evidence is incompetent and improper, because it leaves the witness to determine the only question which the court. is called upon to decide upon the evidence. The court said in the case of Ferguson v. Hubbell (97 N. Y. 507) that it is generally 'safer to take the judgment of unskilled jurors than the opinions of hired and generally biased experts. In the case of McGean v. Manhattan R. Co., above cited, the question was asked, “What would have been- the fair rental Value of this property in the years 1879, 1880 and 1887 if the railroad had not-been built?” and. it was held to be improper, because it "was merely speculative, and speculative. upon the only question which the court and jury, were called upon to decide, and the question called for an opinion of, the witness upon that very subject, the court saying that the ease Was one where the facts which formed the basis of the witness’ conclusion could be specified, and should be stated, and that the inference to be drawn from those facts should be drawn by the court and the jury.

So, in the case at bar, the witness "was. asked in substance what effect the construction of the elevated road - had upon the value of-the premises-&emdash;the very question which the court was called upon to determine from the evidence of the facts relating to the property. The same rule was laid down in the case of Hunter v. Manhattan R. Co. (141 N. Y. 281), where it was held improper • to show what is the particular damage caused to the plaintiff by the presence of the railroad, or to show what the premises would be worth, or what their. rental Value would be, without the road, the court holding questions of this latter class, to be an invasion of the province of the court and the jury, and that the rule, as now laid down, rigidly excludes calling for the judgment of the witness upon the question which is to be submitted. and decided. The sole question Involved in the investigation in the case "at bar was whether the construction of the road had tended to increase' or decrease the value of the property in question, and this, under the decisions, the court Was.called upon to decide, and not the witness.

The judgment should be reversed and a new trial ordered, with costs 46 the appellant to abide the event.

Bartlett, Rumset, Williams and Patterson, . J J., concurred.

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