
    Ann Maria Winters, Individually and as Executrix, etc., Resp’t, v. Manhattan Railway Company et al., App’lts. (Two cases.)
    
      (New York Superior Court, General Term,
    
    
      Filed December 18, 1895.)
    
    1. Evidence—Elevated Railroads.
    In an action for damages to the rental value of a building caused by the operation of an elevated railroad, evidence as to rents paid for other buildings on the same street is inadmissible.
    2. Trial—Objections—Waiver.
    The fact that the appellant subsequently seeks to overcome the effect of incompetent evidence by giving similar evidence on his part, does not constitute a waiver of his exception to its admission.
    Appeal from a judgment in favor of plaintiff in each case.
    Davies, Short & Townsend (Julien T. Davies and Brainard Tolles, of counsel), for app’lts ; B. L. Winters (Jesse Stearns, of counsel), for resp’t.
   FREEDMAN, J.

These two actions, which were tried together, were brought to restrain the maintenance and operation of defendants’ elevated railway in front of several of plaintiff’s premises' on Third avenue in the city of New York, and for past damages, In each of the actions the plaintiff recovered the appropriate judgment usually granted in this class of cases. Upon the trial of the issues, the plaintiff was permitted to prove, as part of her case in the first instance, the rents of other buildings on Third avenue, and the prices paid for other properties on Third avenue, than those in suit. The defendants seasonably objected to this evidence, and their objection having been overruled, duly excepted. In Jamieson v. Kings Co. E. Railway Co., 147 N. Y. 322 ; 69 St. St. Rep. 688, it was held that such evidence is incompetent and inadmissible, as tending to raise collateral issues. The counsel for the plaintiff, in his brief, concedes that, according to the decision of that case, the exception taken by the defendants upon the said point was well taken, but he claims that the evidence thus erroneously admitted did, after all, no harm. A careful examination of the whole case has failed to satisfy me that the defendants were not prejudiced, because the effect of the incompetent evidence was to lend color to the argument that some of plaintiff’s property was probably injured more seriously than was discernible from the actual rentals produced. Nor can I find that the defendants so conducted themselves as to stand precluded from claiming the benefit of the exception. That they subsequently^sought to overcome the effect of the incompetent evidence by giving similar evidence on their part does not constitute a waiver of their exception. They were compelled to do it.

For the error aforesaid, the judgment' should be reversed, and new trials ordered, with costs to the appellants to abide the event.  