
    Gordon Cunard, Resp’t, v. The Manhattan Railway Company et al., Appl’ts.
    
      (New York Common Pleas, General Term,
    
    
      Filed, November 7, 1892.)
    
    Evidence—Memorandum.
    In an action against an elevated railroad company for an injunction restraining the operation of the road, and for damages to plaintiff's premises, a witness, without any pretense of defective memory, and of his own spontaneous recollection, gave the rentals of plaintiff’s property for certain years, and to corroborate this testimony he was allowed to introduce in evidence a subsequent memorandum of those rentals made by himself. Held, that the memorandum was not legal evidence, and its reception necessitates a reversal of judgment for plaintiff.
    Appeal from judgment in equity, awarding an injunction and damages against defendants.
    
      John A. Weeks, Jr., for resp’t; Brainard Tolles, for app’lts.
   Pryor, J.

Much evidence was adduced on both sides as to the effect of the railroad on the fee and rental value of plaintiff’s property ; and the ingenuity of counsel presents persuasive arguments in support of their respective contentions. Doubtless the learned trial judge accorded to that evidence and to those arguments the consideration and weight to which they were entitled; and as his conclusion does not impress us as clearly contrary to the preponderenee of proof, we have no alternative but to affirm his findings of fact

But, the learned counsel for appellants impeaches the judgment for errors of law; and whether there be such errors of law as invalidate the judgment is the real question in controversy.

I. Appellants contend that the trial court included in the award of fee damages, “ compensation for future incidental annoyanees from the structure and operation of trains, not -involving-the violation of any easement." But, it is not apparent in the record that the amount adjudged as an alternative of the injunction was affected by any such element of injury. True, the learned trial judge declined to rule that “ the sum fixed, which defendants may pay to obviate the injunction, should not be-greater than the value of so much of the easements of light, air and access appurtenant to plaintiff’s premises as are impaired by defendants’ railroad, exclusive of all other incidental injuries to the fee value of said premises.” But in Bohm v. R. R. Co., 129 N. Y., 576, 585; 42 St. Rep., 247, the court of appeals distinctly declares, that the depreciation of the remaining property caused by the use of the easements taken or impaired must be compensated as part of the consequential damage suffered from the taking. In its obvious sense the proposition submitted to the trial court excludes consideration of such use and allowance for such depreciation, and limits the amount to be awarded for fee damage-to the mere value of the easements taken or impaired; that is,, to a nominal sum. Newman v. R. R. Co., 118 N. Y., 618 ; 30 St. Rep., 36. The proposition as thus phrased by appellants, is not-authorized by the adjudications in American Bank Note Co v. R. R. Co., 129 N. Y., 252 ; 41 St. Rep., 531; and Messenger v. R. R. Co., 129 N. Y., 502; 42 St. Rep., 96.

The refusal, therefore, to affirm the proposition does not warrant the inference that the learned trial court failed to obesrve the-correct rule of compensation in its estimate of fee damage; and the contrary, rather, is apparent on the record. “As it does not appear with any certainty in the record that he took these matters into consideration in assessing the fee damage, we are unable to-perceive that he committed any error in these refusals.” Messenger v. R. R. Co., 129 N. Y., 502, 506; 42 St. Rep., 96.

II. Not so easily obviated is appellants’ allegation of error in the admission of evidence.

The record shows that, during the examination of a witness, a memorandum by him was, without then objection by defendants, “received in evidence and marked Plaintiff’s Exhibit 8.” The-examination of the witness proceeded, and at its close, this colloquy occurred : “ Counsel for defendants: I wish to make an objection to the statement marked Plaintiff’s Exhibit 8, on the-ground that it was not the best evidence. In answer to the court the witness testified : I "prepared this statement from my own recollection entirely, I used no books or papers or memoranda of any kind. I depended entirely upon my own recollection, and from that recollection, only, I prepared this statement. The court overruled the objection, and counsel for defendants duly excepted."

Obviously the court treated the admissibility of the evidence as still an open question, and ruled it as then depending for consideration and decision. The interrogatories addressed to the witness by the court were designed to ascertain the competency of the evidence; and the decision admitting it proceeded upon the answers to those interrogatories, that is to say, upon facts developed by the court after the formal reception of the evidence. By not suggesting the point that the objection came too late because the evidence was already in, plaintiff’s counsel himself treated its-admissibility as still an open question, and assented that the court, might determine it as yet for adjudication. Had the court or counsel intimated that the objection was belated, defendants-might still have availed themselves of a motion to strike out; an expedient of redress from recourse to which they were possibly beguiled by the conduct of both court and counsel in accepting and. deciding the objection as seasonably interposed.

We are clearly of opinion that the competency of the evidence is before us for review. Blum v. R. R. Co., ante, 680.

Without any pretense of defective memory the witness, of his own spontaneous recollection, gave the rentals of plaintiff’s property for the years 1873 and 1877; and to corroborate this testimony he was allowed to introduce in evidence a subsequent memorandum of those rentals made by himself. That this memorandum was not legal evidence is too plain a proposition for argument. Nat. Ulster Co. Bank v. Madden, 114 N. Y., 280; 23 St. Rep., 220.

But, urges respondent, the action is in equity ; and that error in the admission of evidence may be cause of reversal, it must, appear of prejudice to appellants. Such is not the law, Jefferson v. E. R. R. Co., 132 N. Y., 487; 44 St. Rep., 629; Foote v. Beecher, 78 N. Y., 155; but if it were, respondent’s own argument sufficiently evinces the effect of the error upon the judgment. He contends that “ the only and best evidence of fee damage is the course of rentals,” and in proof of rentals he adduces “Exhibit 8” as impressive evidence.

For the error indicated, the judgment is reversed and a new trial ordered, costs to abide the event.

Daly, Ch. J., and Giegerich, J., concur.  