
    Samuel Cameron, Respondent, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants.
    
      JLction against a railroad by an abutting owner who, pending the suit, has parted. with the. title —issues sent from the Special Term to the Trial Term — entry of judgment on the'verdict —period of assessment of damages.
    
    During the pendency of an action by an abutting owner against elevated railroad companies, the plaintiff parted 'with his interest in the property, and an order was thereupon made, .upon the motion of the defendants, transferring the case from the Special Term calendar to the Trial Term calendar,, and directing .a jury trial of the claim for past or rental damages alleged in the complaint to have been suffered by the plaintiff during his ownership of the premises; the trial judge followed the direction of the order, and judgment was entered upon the verdict of the jury as of course as in án action at law.'. •
    
      Meld, upon an appeal from the judgment, that, assuming that the action was still to be regarded as an equitable action,- and that it was improper to enter judgment upon the verdict as of course, instead of applying to the- Special Term, the defect, was an irregularity for which- the defendants might have moved to 'set the judgment aside, but which was waived by their failure to do so;
    That the trial court was bound to try the issue sent to it by the order, that is, to have the jury fix and assess the damages from the commencement of the action down to the time when the plaintiff -parted with the title to the property.
    Appeal by the defendants, The New York Elevated 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 2d day of June, 1898, upon the verdict of a jury, and also from an order entered in said' clerk’s office on the 28th day of May, 1898, denying the defendants’ motion for a new trial made upon the minutes.
    This action was brought,to enjoin the operation of the defendants’, elevated railway in front of the plaintiff’s premises, and to recover past rental damages, ..or, in the event of the continued operation of the railway, to recover a gross sum as the value of the easements taken.
    
      Alfred A. Wheat, for the appellants.
    
      Charles A. B. Pratt, for the respondent.
   O’Brien, J.:

Although it is insisted that the damages awarded are excessive, and that the verdict is contrary to the law and to the evidence, we have been unable from an examination of the record to find this contention sustained. The award was not excessive, but was within the proof.

A serious question is presented as to the admissibility of the testimony of an expert produced by the plaintiff upon values in 1873, ■when from the statement of his age it was clear that he could have but little or no personal knowledge on the subject. If the award were dependent upon such evidence alone, we should be ■adverse to sustaining it. But we have in the record considerable ■evidence of the rental history of the property, and this was in no way offset upon the cross-examination, which was devoted to bringing out the course of rents from 1875 to 1879, covering the period ■of the panic and the construction of the road, and a portion of the period about which the expert objected to give testimony. The ■defendants offered no evidence, except that of an engineer, as to the construction and dimensions of the road, together with proof of another witness as to the number of passengers carried at different' times on the railway. The reliance of the defendants, apparently, was thus ¡ilaced more upon the weakness of the plaintiff’s proof than upon any evidence produced by themselves, and, as we have ■already intimated, there was, in such evidence of the plaintiff, sufficient upon which to base the award made by the jury.

This brings us to the question most strongly urged on this appeal, as to whether the court erred in submitting to the jury the question •of rental damages for the period from the date of the commencement of the action down to the time the plaintiff. sold the property. In addition to the reasons given by the learned trial judge in his opinion delivered subsequent to the rendition of the verdict, there is another consideration which we think is conclusive in favor of the disposition made. The case appeared upon the day calendar of the Special Term for the trial of equity cases, as shown by the recitals in the order transferring it to the Trial Term, “ Plaintiff having then and there admitted, through his counsel, * * * that he has, since the commencement of this action, parted with his alleged title to the premises described in the complaint, and that he no-longer claims to be the owner of said premises-, and that defendants, through their attorney, * * * having thereupon duly demanded a jury trial of the claim for past or rental damages alleged in the complaint to have been suffered by the plaintiff during his ownership of said premises, and said motion having been granted, now, therefore, on motion of * .* * attorney for the defendants, it is hereby ordered that this cause be transferred to the calendar of the Trial Term.”

The trial judge did just what this order directed him to do,, namely, submit to the jury “ the claim for past or rental damages alleged in the .complaint to have been suffered by the plaintiff during his ownership of said premises.” Notwithstanding this order-obtained by defendants, their present contention upon this appeal-is that the trial judge erred in trying the case in the manner and upon the issues directed by such order.

It is unnecessary in this case to' determine whether the practice followed after the rendition of the verdict was correct or not.. Assuming the defendants to be right in their insistence that if this, was still to be regarded as an equitable action, it should have been remitted to the Special Term and the judgment entered by that, court, instead, as was here done, of. having the judgment entered as of course upon the verdict of the jury, as though it were an action at' law, the entry of the judgment in the way it was done was merely an irregularity upon which they might have moved to set the judgment. aside. But this they have not done.

The question, therefore, which the defendants desire to raise as to-the right of the plaintiff to have the jury fix and assess the damages from the commencement of the action down to the time when he. parted with title to the property, is not before us, for the reason already stated, that the trial court proceeded, as it had the right and was. bound to do, to try the issues which under the terms of the order were sent to that part of the court for trial.

The judgment appealed from should be affirmed, with costs.

Van Brunt, P. J., Barrett, Rumsey and Patterson, JJ., concurred.

Judgment and order affirmed,- with costs.  