
    William Y. Mortimer et al., Ex’rs and Trustees, Resp’ts, v. The Metropolitan El. Railroad Co. et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed December 1, 1891.)
    
    1. Railboads—Elevated—Damage to easement—Rental value.
    An owner of real estate may recover damages for the injury to its rental value while the property was in the actual possession of tenants under a lease from such owner made after the construction of the elevated railroad complained of.
    2. Same.
    Plaintiff’s intestate was the owner of the property in question from 1858 to the time of his death, 1882. He leased it to G. in 1880 for a term expiring 1885. This action was begun in 1886 and damages demanded from 1882. Held, that while it may be true that a devisee in a certain general sense is a purchaser, the plaintiffs, who were trustees for certain designated beneficiaries in respect to this property, represented all the rights that their testator could assert against defendant before his death.-
    3. Evidence—Expebt testimony.
    On the trial plaintiffs’ counsel asked an expert witness, “ To what ex" tent, in your judgment, was the rental value 'of the property diminished by the structure and the passing of trains; how much per year? ” Counsel for defendant objected to the question as “improper, irrelevant and immaterial, as assuming that the property has been injured in that way, and as requiring the witness to separate such injury from that due to other causes.” Held, that the real objection to the question was that it sought to substitute the opinion of the witness for the judgment of the jury, and that this idea was not fairly embraced in the objection.
    Appeal from judgment of the ¡New York superior court, general term, affirming judgment for plaintiff, entered upon a verdict of a jury, and order denying new trial.
    
      Brainard Tolles, for app’lts; John E. Parsons, for resp’ts.
    
      
       Affirming 37 St. Rep., 970.
    
   O’Brien, J.

The plaintiffs’ recovery in this case was for damages sustained in the depreciation of the rental value of certain real estate situated at the corner of the Bowery and Division street in the city of ¡New York, caused, as is alleged, by the construction, maintenance and operation of the defendant’s railroad. The plaintiffs’ intestate, Richard Mortimer, was the owner of the property since the year 1858, to the time of his death, May 80, 1882. On the 5th of May, 1880, he leased the property to one Gregg, for a term expiring May 1, 1885, so that at the time of his death this lease had nearly three years to run. This action was commenced July 28, 1886, and damages were demanded in the complaint only from the death of the plaintiffs’ testator. Under the instructions of the court, the jury assessed the damages in two separate sums, namely: From June 1, 1882, to May 1, 1885, the period, after Richard Mortimer’s death, covered by the lease to Gregg, $14,653.80, and from May 1, 1885, to the commencement of the action, July 28, 1886, $5,875.20. The trial court, upon defendant’s motion, set aside the verdict for damages from June 1, 1882, to May 1, 1885. Both parties having appealed to the general term, the order setting aside the portion of the verdict above described, was reversed, and the balance of the verdict was, on defendants’ appeal, affirmed. The defendants appeals to this court from the judgment entered on the verdict as affirmed by the general term and also from the order reversing the special term in reducing the verdict. The principal question raised by the appeals is the right of an owner of real estate to recover damages for an injury, such as was proven and found in this case, while the property was in the actual possession of tenants under a lease from such owner. Our decision at this term in the case of Kernochan v. The N. Y. Elevated R. R., 128 N. Y., 559; 41 St. Rep., 110, disposes of that question conclusively against the defendant’s contention, and it is only necessary to notice some minor points argued by the defendant. The will of Eichard Mortimer devised the real estate in question to the plaintiffs, as executors and trustees, upon certain specified trusts for the benefit of his children. It is contended in behalf of the defendant that the plaintiffs stand in the position of purchasers of the property after the road was put into operation. If this view of the plaintiffs’ relations to the property was correct, I am unable to see how it would affect the defendant’s liability, since the recent decision of this court in the Pappenheim case, 128 N. Y., 436; 41 St. Rep., 445. But while it may be true that a devisee in a certain general sense is a purchaser, it would be more correct to say that the plaintiffs, with respect to this property, represented all the rights that their testator could assert against the defendant before his death. There were no negotiations in reference to a purchase, as in other cases where the price paid is fixed with reference to the existing situation and all the burdens and disadvantages that the property is subject to, in consequence of its locality, are considered and enter into the agreement of the parties. The title to the property, devolved upon the plaintiffs under the will and they hold it, not in their own right or for their private purposes, but as trustees for certain designated beneficiaries. It is difficult to suggest any sound reason why the remedy that existed in the lifetime of the testator should be lost or impaired after the property came to the hands of the plaintiffs in trust for his heirs. The amount of damages sustained was a question of fact. The plaintiffs recovered for the diminution in the rental value during the period covered by the complaint. The cases all agree that this element of loss, at least, is recoverable. Tallman v. M. E. R. R. Co., 121 N. Y., 119-124; 30 St. Rep., 491; Drucker v. Manhattan R. Co., 106 N. Y., 157; 8 St. Rep., 599; Pond v. M. E. R. R. Co., 112 N. Y., 186; 20 St. Rep., 479; Lawrence v. M. E. R. R. Co., 126 N.Y., 483; 37 St. Rep., 834: Hussner v. Brooklyn City R. R. Co., 114 N.Y., 433; 23 St. Rep., 856.

On the trial the plaintiffs’ counsel propounded the following question to an expert witness:

“Q. To what extent, in your judgment, was the rental value of the property diminished by the structure and the passing of trains from the period June 1, 1882, down to the commencement of this suit; how much per year ? ”

“ Counsel for the defendant objected to the question as improper, irrelevant and immaterial, as assuming that the property has been injured in that way, and as requiring the witness to separate such injury from that due to other causes. The court overruled the objection, and counsel for the defendant duly excepted.”

The question recently decided by this court in the Roberts case is not raised by this objection. The real objection to this question was that it sought to substitute the opinion of the witness for the judgment of the jury, and this idea is not fairly embraced in the objection. Kernochan v. N. Y. El. R. R. Co., supra.

The judgment and order appealed from should be affirmed, with costs.

All concur, except Earl, J., not voting.  