
    George Mundorf, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    Railroad—Elevated—Evidence.
    In an ordinary action to restrain defendants from maintaining and operating an elevated railroad, it is error to admit evidence tending to show danger from fire to premises bordering on the road caused by defendant’s negligence. It is only the ordinary damages or risks not resulting from negligence that can be taken into consideration in estimating damages to the land.
    Appeal from judgment entered on report of referee.
    
      Davies, Short & Townsend,for app’lts; É. A. Hibbard, for resp’t.
   Van Brunt, P. J.

This action was the ordinary equity action to restrain the defendants from maintaining and operating their railroad in front of the plaintiff’s premises, No. 724 Ninth avenue.

It seems to us that a fatal error was committed in the admission of testimony upon the trial of this action. A witness who had formerly been a tenant of No. 742 Ninth avenue, a building at a considerable distance from the one in question, was asked: “Do you know about the old frame house catching fire? A. Yes, sir. Q. How did it catch fire?” This question was objected to and admitted under exception. The witness then answered as follows: “A. "Well, it was in the summer time, about.the 5th of ■July, and I couldn’t say whether it was from the sidewalk or the elevated station, or whether there was something thrown in through the windows. I couldn’t tell whether it was from the station or not, but I know it was right in the locality of the station; but I couldn’t say whether it was from the walk or the station. The fuse of whatever it was came into the bed-room and set fire to the bed-room ; I was in bed in the other room at the time; I don’t know what it was or where it came from; the room was set on fire, anyway, whether it was mischievous boys or not; this was on the floor above the store; it was a bed-room for the children; it was used for a part of my family; but whether it was a firecracker that set it on fire or not, I don’t know.”

The admission of this question seems to have been entirely unjustifiable because there was no allegation in the complaint of negligence in the manner in which the defendants managed their railroad, and there being nothing in this proceeding by which, the plaintiff could compel the defendants to pay for the right to negligently cast fire towards the plaintiff's premises in the future, there was no such element of damage to be ascertained in determining the value of the easement in question. And furthermore it was evidence in respect to other premises than those in question..

If it be said that the answer was indefinite as to the cause from which the fire came, it is sufficient to say it is impossible for us to-determine whether the referee was of the opinion that the fire came from the elevated road or not. He deemed it important to-show that other premises had been endangered by the negligence of the company in the management of their road, and that the-danger of setting on fire the premises bordering on the road was a fact to be taken into consideration in determining the measure-of damages.

It is a familiar principle that in proceedings of this character the damages which may possibly result from the negligent or unskillful operation of the road must be excluded from consideration. Such damages may never be sustained, and if they did occur the party aggrieved may have an independent remedy therefor.

It is only the ordinary damages or risks not resulting from negligence that can be taken into consideration in estimating damages to the land only.

The judgment must be reversed and a new trial ordered before-another referee, with costs to appellant to abide event.

Daniels and Barrett, JJ., concur.  