
    Isaac Steigerwald and Ralph Weil, Appellants, v. The Manhattan Railway Company and The Metropolitan Elevated Railway Company, Respondents.
    
      Dismissal of a complaint by a referee—on appeal the most fmovable inferences me indulged in behalf of the plaintiff—expert opinion, as to the effect of an elevated railroad on values.
    
    The dismissal of a complaint by a referee at the close of the plaintiffs’ proof operates as a nonsuit, and the plaintiffs are, upon an appeal from the judgment entered upon his report, entitled to have their case considered in the light of the most favorable inferences deducible from the evidence, and all disputed facts are to be treated as established in their favor.
    In an action by the owners of property abutting on an avenue in the borough of Manhattan, to restrain the operation of an elevated railroad therein, and for damages, an expert may properly be asked, “Well, in your opinion, did the building of that elevated railroad and its operation have any effect upon the values of property in 1st avenue.”
    Appeal by the plaintiffs, Isaac Steigerwald and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 11th day of December, 1894, upon the report of a referee dismissing the complaint at the close of the plaintiffs’ proof.
    This appeal was transferred from the first department to the second department.
    The action was brought by the owners of property abutting on First avenue in the borough of Manhattan to restrain the defendants from operating their elevated railroad therein, and for damages.
    
      A. J. Skinner, for the appellants.
    
      J. Osgood Nichols [Julien T. Davies with him on the brief], for the respondents.
   Hatch, J.:

The form which the judgment of the referee assumes by the dismissal of the complaint at the close of plaintiffs’ proof operated in effect as a nonsuit. (Place v. Hayward, 117 N. Y. 487.) The plaintiffs, therefore, upon this appeal become entitled to have then-case considered upon the most favorable inferences deducible from the evidence, and all disputed facts are to be treated as established in their favor. (Ten Eyck v. Whitbeck, 156 N. Y. 341.) On this construction of the evidence it is quite clear that the plaintiffs had made a case entitling them, if the evidence was to be believed, to a judgment for substantial damages.

The testimony of the expert tended to establish that there was a depreciation in fee damage, from the time of the construction and operation of the road to the date of the trial, in a substantial sum. If, however, it be assumed as claimed that in fact there was an increase in value, yet it was disclosed by the testimony that there had been a much greater advance in property situated upon the side streets in the immediate locality, in front of which there existed no elevated railroad structure, in a ratio beyond that of 'any increase in value of the plaintiffs’ premises. In addition to this, the testimony respecting rental values, while not showing marked depreciation of the property owned by the plaintiffs, did show that other property in the immediate locality had depreciated in rental value from the date of the coming and operation of defendants’ structure. While it is perhaps true that much just criticism can be made of the testimony offered to show damage to plaintiffs’ property by reason of the construction and operation of the elevated railroad, yet it is equally true that, upon the entire testimony, it may easily be deduced that the plaintiffs’ property has been damaged by the presence and operation of the defendants’ railroad, and that a finding by a court or referee to that effect, and an award of substantial damage, would find support in the testimony which was given upon the trial. Whether, such damage, measured by the testimony, be great or small is not presently of consequence, as it is quite clear that the evidence would have warranted and supported a finding for an amount which, in legal contemplation, must be regarded as substantial. The proof showed most of the elements causing damage, which were regarded as sufficient in Drucker v. Manhattan, Railway Co. (106 N. Y. 157). This, accompanied by proof showing either an actual depreciation of the fee value of the property, or if not actual depreciation a failure to appreciate as much as other property upon the side streets in the same locality, unaffected by the railroad, would furnish a basis from which the court could derive the" inference that damage was inflicted upon the property by reason of the presence and operation of the defendants’ railroad in such street. While it may be true that the court, upon all the proof, would be authorized to find that the structure and operation of the railroad in this street inflicted no damage upon this property, yet it is equally true, as we have before observed, that the court would, upon the proof, have been authorized to find otherwise. This being the condition of 'the proof, the referee was not justified in nonsuiting the plaintiffs, for which reason this judgment must be reversed.

Error was also committed in the rulings had upon the trial. The expert was asked, “ Well, in your opinion, did the building of that elevated railroad and its operation have any effect upon the values of property in 1st avenue % ” This was objected to, the objection sustained and the proof excluded. Other questions were asked of this witness tending to elicit information upon this subject, which the court excluded. It is clear, from the testimony, that the questions sought to obtain an opinion which the witness was authorized to give as to the effect of the presence of the elevated structure and its operation generally upon the abutting premises in the streets through which it runs. In form it is nearly like, and in substance precisely like, the questions which were asked in Hunter v. M. R. Co. (141 N. Y. 281), and which were held proper by the court. We think it was error to exclude this testimony, and that it should have been received.

In the disposition which we make of this case we do not determine that the plaintiffs are entitled to recover any damage, but we do determine that, upon the case as' made, the court would have been authorized to award damages; and as the referee reached the conclusion that no cause of action had been made out, we think he reached an erroneous conclusion, for which reason the judgment should be reversed.

All concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  