
    WALDIE v. BROOKLYN EL. R. CO. et al.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    Trial before Court—Form of Testimony—-Review.
    Testimony that the cinders from defendant’s engines turned plaintiff's house black, even if in the form of an opinion or conclusion, rather than a statement of fact, will not be held misleading or prejudicial to defendant where the trial was before the cotut.
    Appeal from special term, Kings county.
    Action by George Waldie against the Brooklyn Elevated Railroad Company and the Union Elevated Railroad Company. From a judgment for plaintiff, defendants appeal. Affirmed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    Hoadly, Lauterbach & Johnson (Wm. H. Page, Jr., of counsel), for appellants.
    Stephen M. Hoye (Francis R. Whitney, of counsel), for respondent
   PRATT, J.

This is a land damage suit, or action for loss of fee and rental value, in respect of premises on Adams street, in the city of Brooklyn. The defendants’ railroad was constructed and commenced to be operated in 1888. The premises consisted of a three-story and basement brick building, with brown-stone trimmings, 35 feet deep by 20-¿ feet front; lot 50 feet deep. The motions made in this case to send it to the circuit for trial, or to stay the suit until the damages were ascertained by commissioners, were properly overruled. See opinion in the case of Hart v. Railroad Co. (decided at this general term) 35 N. Y. Supp. 39.

There is no merit in the exception to the answer of the witness who testified that the cinders and dust turned the house black. It was more a fact than an opinion. At any rate the court could not have been misled to the prejudice of the defendants. Such matters are largely in the discretion of the court, and where the case is tried before the court, without a jury, there is less chance of a decision being made erroneous by the testimony, whether it comes in the form of an opinion or conclusion, or stated as a mere fact.

As to the amount of damages, we think there is evidence sufficient to support the conclusion arrived at by the judge who tried the case, and even if the damages were more we should find we would not be justified in reversing the judgment, which was based upon a trial by a judge who saw the witnesses and heard them testify, and could better judge of their truthfulness, fairness, and judgment than we can. We cannot see that there can be any objection as to the form of the judgment. It appears plainly enough that the court has assessed the damages upon the evidence. What he decided was the amount which the property was depreciated by interference with the light and air and access to the premises. The amount of damages was a mere fact, which the court has found.

We think the judgment should be affirmed, with costs. All concur.  