
    John M. Haskell, Resp’t, v. The Northern Adirondack Railroad Company, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    1. Damages—Trespass.
    In an action to recover for the destruction of fruit trees hy fire, evidence of the value of the standing fruit trees so destroyed is improper.
    8. Appeal—Immaterial error.
    Where the appellant is not prejudiced hy the error in the admission of improper evidence, the error should, under the provisions of § 1003 of the Code, be disregarded on appeal.
    Appeal from a judgment in favor of the plaintiff.
    
      S. A. Beman, for app’lt. J. C. Saunders, for resp’t.
   Mayham, P. J.

We think all the questions raised on this appeal were correctly disposed of by this court on a former argument, as reported in 49 St. Rep., 483, unless this court erred in. sustaining the decision of the trial judge wherein he allowed evidence of the value of the standing fruit trees' destroyed by the fire, instead of the difference in value of the land on which they stood, by reason of their destruction. In deciding this case on the former argument this court followed the decision in Whit-beck v. N. Y. C. R. R. Co., 36 Barb., 644. That was an action for damages, for the destruction of plaintiff’s fruit trees by fire, caused by the negligence of the defendant, and the witness was permitted, in answer to questions put by the plaintiff’s counsel under defendant’s objection, to state the value of the trees destroyed, and this court, on appeal, held the evidence competent. That decision was referred to in Argolsinger v. Vines, 82 N. Y., 314, and was tacitly approved by the court, although a different rule of damages was adopted in that case, and the court, without sustaining the rule then laid down, affirmed the judgment on the ground that the difference, if any, in the damages in that case, was too small to justify a reversal, and, therefore, applied the maxim “ de minimis non curat lex." But it is now claimed that the law was definitely settled in Dwight v. The Cortland & Northern R. R. Co., 132 N. Y., 199, where it was held that, the following questions were erroneously put and answered under the defendant’s objection.

“ Q. What were these twenty-one trees worth at the time they were killed?” ■ The attention of this court was not called to that decision at the'time of the former hearing of this appeal, if, indeed, it had been promulgated at that time. Assuming, however, as we must, that this decision, which is directly in point, is the law of this state, the evidence offered and received in this case was erroneous, and as the same related to an important question in the case, the judgment must for that reason be reversed, unless we can see that the other rule of damages also adopted by the plaintiff in his proof cured the error, and that no damage resulted to the defendant from the receipt of the evidence erroneously received. It is quite apparent that sufficient evidence of an unobjectionable character was given in this case upon the question of damages to sustain this verdict.

Evidence was offered and received showing the value of the farm before the injury complained of and its value after the damage by fire to these fruit trees. This was legal evidence, and an examination of it shows that there was enough of that class of evidence to uphold the verdict of the jury. An examination of the evidence upon the question of damages in this case shows that the testimony as to the value of the trees was more favorable to the defendant than that relating to the difference in the value of the farm before or after the fire; and hence it is apparent that the appellant was not prejudiced by the error, and under the provisions of § 1003 of the Code of Civil Procedure the error should be disregarded on this appeal. Carley v. N. Y., Ont. & Wes. R. R. Co., 16 St. Rep., 307; Powell v. Fletcher, 45 id., 294; Miller v. Barber, 66 N. Y., 558.

The error in the receipt of the evidence of the value of these trees was not, therefore, prejudicial to the appellant, and does not afford ground for reversal. Lewis v. Hojer, 41 St. Rep., 619.

On the whole case, therefore, we see no reason for the reversal of this judgment.

Judgment affirmed, with costs.

Herrick, J., concurs; Putnam, J., not acting.  