
    Lydia Woodworth, Respondent, v. Brooklyn Elevated Railroad Company, Appellant. Raymond Gascon, Respondent, v. Brooklyn Elevated Railroad Company, Appellant. Mary M. Parsons, Respondent, v. Brooklyn Elevated Railroad Company, Appellant. Lydia F. Bowley, Respondent, v. Brooklyn Elevated Railroad Company, Appellant.
    
      Review of the decision of the court as to the competency of an expert—right to apreliminary cross-examination of a witness whose competency is challenged—actions against an elevated railroad — designation in a question of buildings as shanties—. costs where four tenants in common of abutting property bring four separate actions, which are tried together.
    
    The determination of the court as to the competency of a witness called upon to give expert testimony should not be disturbed upon appeal, unless it is against the evidence or wholly or mainly without the support of facts.
    A party objecting to the competency of a witness is entitled, as a matter of right, to a preliminary cross-examination, but the denial of such right will not constitute reversible error unless the party entitled to assert the right has been prejudiced by such denial.
    Pacts stated, upon which it was held that the court’s determination as to the competency oí an expert witness and the denial to the objecting party of the right to a preliminary cross-examination of such witness, constituted reversible error.
    The refusal of the court to allow buildings which have been described by witnesses and appear by photographs to be properly designated as shanties, to be so referred to in questions to expert witnesses as to value, held to be prejudicial error.
    Where each of four tenants in common of property abutting upon an elevated railroad brings a separate abutter’s action against the elevated railroad company, which actions are, by stipulation, tried together, only one bill of costs will be allowed.
    Appeal by the defendant in each of the four above-entitled actions, the Brooklyn Elevated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff in each of them, entered in the office of the clerk of the county of Kings on the 2d day of April, 1897, upon the decision of the court rendered after a trial at the Kings County Special Term.
    
      P. Percy OMttenden, for the appellant.
    
      Theodore B. Gates, for the respondents.
   Hatch, J.:

This is the usual abutter’s action for an injunction, or in the alternative an award of damage. There are four separate suits where one action would have sufficed. By stipulation, the actions were tried as one, and there is but one record. The plaintiffs are tenants in common -of the property involved in the action. The damages which have been awarded are quite large, and we have not determined whether or not they can, for the full amount, be justified, as for other reasons there must be a new trial awarded. These consist in rulings made upon the trial, which we regard as involving prejudicial error.

Albert L. Woodworth was- called as a witness for the plaintiff, and he testified that he knew the property ; had partial oversight when it was being built in 1872 and 1873, and built the house next,-.,, door identically like it, and lived in it until about six years before' the trial. He testified that he was familiar with the value of the lot in 1876, and until the road came. He was then asked: “Q. What was the lot, street number 41, worth in ’82 and ’88 § ” This was objected to by the defendant on the ground that the witness was not shown competent to testify. “ The Court: He says he is.” Defendant excepted. The witness then gave this testimony: “ I had no dealings in any lots from ’76 up to ’83 and ’84. I knew of others having dealings and kept track of the prices. I understood though that those lots, the amount or extent of my information on the subject is not accurate, but I kept myself generally informed of the prices in the neighborhood during two years after we built the houses there, a year or two years, I think it was two years after. Plaintiff’s counsel: I will not press that; I do not think the witness is sufficiently familiar. The Court: I think he is as familiar as anybody could be in the neighborhood; he says he kept himself informed of the lots in the neighborhood. Q. What was this lot worth in ’85 ? The Court: In ’85 the operation was begun. Defendant’s counsel: I renew my objection on the ground that the witness is not sufficiently competent. The .Court: That will be overruled. [Exception to defendant.] Defendant’s counsel: Will your honor permit me to examine him as to competency % The Court,: No, I think he is competent. You may cross-examine him when your turn comes. [Exception to the defendant.] ”

Although the court said that the witness was as familiar as any one could be with the Value of lots in the neighborhood, it is quite apparent that the opinion was a misapprehension of the statement made by the witness. The first statement of the witness was that he was familiar with the value of lots in Hickory street or Lexington avenue in 1876, and along up to the time the road came, which would carry his knowledge to 1885, the year the road was finished. After he had been asked the question as to value he changed this answer and said that his information was not accurate and that he only kept himself informed for two years after wo built the houses there, a year or two years, I think it was two years after.” This statement limited his knowledge to 1875, ten years before the road came. The witness was then permitted to state the value of the lot in 1883 and fixed it at $2,000. He then very frankly stated : “ I have no idea what the value of that lot is to-day with the road there. If you want my opinion, I should say not over eight hundred or a thousand dollars, perhaps not that, it would depend a good deal on the purpose you want it for. In the market itself, I should say perhaps eight hundred dollars.”

The court is called upon in the first instance to determine the competency of an expert witness to give testimony, and such question becomes one ■ of law. It was somewhat doubted whether its decision thereon could be reviewed upon appeal. (Nelson v. Sun Mutual Ins. Co., 71 N. Y. 453.) It was held in Massachusetts that it was a question of law for consideration by the whole court. (Baxter v. Abbott, 7 Gray, 71.) This was contrary to the doctrine announced in some of the States. It is now the settled law in this State that such ruling should not be the subject of review or reversal unless it is against the evidence or wholly or mainly without the support of facts. (Slocovich v. Orient Mut. Ins. Co., 108 N. Y. 56.) The ruling of the court may, therefore, be reviewed upon the facts, subject to this limitation. It is quite evident, as is outlined above, that the witness was without any reliable information upon the subject of value during the years with refex-ence to which he was permitted to testify as to value, and he so stated. Within the rule, therefore, it was error to receive his testimony, as it was wholly unsupported by any knowledge rendeilng him competent to testify.

In addition to this, the right of preliminary .examination was denied. The privilege of cross-examination, where objection is intex’posed to the competency of the witness, is a matter of right. (First Nat. Bank of Easton v. Wirebachs Exr., 12 Wkly. N. Cas. [Penn.] 150.) Mr. Wharton, in a learned note to Trussell v. Scarlett (18 Fed. Rep. 214), states the rule in these words : When the admissibility of either a witness or a document is in question, the party opposing the admissibility is entitled, as a preliminary test, to cross-examine on this specific issue the witnesses on whose testimony the admissibility depends. No document or witness, such is the fundamental principle, is self-proving. We must fall back, as a basis logically necessai-y in all cases, on parol jxroof, and this proof only is effective when exposed to the ei’iticism of cross-examination.” And the illusti'ation which he gives shows the principle upon which the ruling rests, eleaily and satisfactorily. (Maurice v. Worden, 54 Md. 233; Abb. Tr. Ev. 255, § 14.) In ci-iminal cases the rule is canied much farther, both in this State and in Massachusetts, and the court is held bound, when the admissibility of a document or statement in evidence depends upon the testimony of a witness, not only to permit cross-examination, but to allow other witnesses to be called by the objector, and try the question of competency. (People v. Fox, 121 N. Y. 449 ; Commonwealth v. Culver, 126 Mass. 464.)

While the rule in criminal cases would seem to be absolute, it is evident that in civil cases it must be subject to some modification. While the right exists to a preliminary cross-examination in the cases indicated, the denial of such right may not, in all cases, be reversible error. If it appears subsequently that the objecting party had full right of cross-examination generally, ■ and the evidence adduced established the competency of the witness to testify or the document to admission, it could not be affirmed that prejudicial error was shown. In the present case, however, the defendant had the clear right to the preliminary cross-examination for which it asked, and if it had been permitted it is quite likely that the misapprehension under which the court labored, respecting the effect of the answers of the witness, would have been removed, and theincompetency of the witness to testify made the more clearly to appear, probably resulting in the rejection of his testimony. It was, therefore, error to refuse it.

Andrew Miller, one of the plaintiffs’ experts, was called, and the following took place : “ Q. Would the presence of six or seven shanties in front of a piece of property affect the value of the lot opposite thereto? Objected to. The Court: That is excluded There is no proof there g,re any shanties here; you call them shanties. You may speak of them as low frame houses; to call them shanties is a characterization of them.” This ruling was excepted to. The witness being examined was one of the plaintiffs’ experts, and it was competent to ask him if the buildings opposite the property would affect its value ; and it was proper, in view of the defendant’s theory and the proof in the case, to characterize some of the buildings opposite the property as shanties. It was not an unfit designation, as is evidenced by the testimony of some of the witnesses who called them shanties, and by the photograph of them introduced in evidence. The question was competent and pertinent, and called for an answer which bore directly upon the value of the property and the surroundings, by which, to some extent, value and damage would be measured. The condition existing, the hypothesis was proper, and its exclusion was error. (Dilleber v. Home Life Ins. Co., 87 N. Y. 79; Carter v. Tallcot, 36 Hun, 393.)

We are also of opinion that but one bill of costs should have been allowed in this case. There was no necessity for bringing four actions when one would have sufficed, in which all the plaintiffs could have joined. In effect this is what happened, as there was but one trial and one record. The multiplication of unnecessary actions ought not to be aided by multiplication of costs. We are loth to reverse a judgment of this character for error in the admission of testimony or for rulings upon the trial, and have not done so in other cases of this class that have preceded it, where we could see that substantial justice had been effected, and have uniformly held, under such circumstances, that the erroneous rulings were harmless. But in this case the rulings may have, and quite likely did, prejudice the defendant.

The judgment should be reversed and a new trial granted, with costs to abide the final award of costs.

All concurred, except Cullen, J., not sitting, and Bradley, J., not voting.

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