
    Henry Steubing, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 3, 1892.)
    
    1. Appeal—Questions not raised below.
    Objections not raised on the trial' or appearing by the record are not available on appeal.
    3. Evidence—Refreshing memory.
    An objection to evidence on the ground that the witness’ memory was refreshed by looking at books is not well taken where the record shows that the witness testified from his memory independent of the books in most of the instances mentioned.
    3. Same—Proof op correctness op books.
    Where the witness testifies that he examined the books from time to time to see if any mistake was made and that he knew the entries at the time to be correct, it is immaterial where the person who made the entries is at the time of the trial.
    4. Railroad—Elevated—Evidence.
    , An objection to an inquiry of the plaintiff in an" action against an elevated railroad, as to whether when he purchased his property he considered the presence of the railroad an injury or benefit to the property, is immaterial, as it is a question not as to what plaintiff considered the structure, but what it actually was.
    Appeal from judgment entered upon the report of a referee.
    
      J. S. Wood, for app’lts; H. G. Atwater, for resp’t.
   Van Brunt, P. J.

Upon an examination of this record we see nothing to distinguish the case from the many which have been before this court upon appeal.

The claim that the amount awarded is excessive does not seem to be sustained by the evidence. Upon the contrary, the findings of the referee seem to be fully justified in that regard.

The objection that no permanent injunction can issue in respect to one of the pieces of property because the owner only had a life estate therein, does not seem to be well taken, as the objection does not appear upon the record.

The objection to the evidence of the plaintiff in respect to rents received because his memory was refreshed by looking at the books in which the receipts of the rents had been entered, does not seem to be well taken. It would appear from certain parts of the record that the witness had testified from his memory independent of the book in most of the instances mentioned.

The claim that the witness nowhere stated that he could not testify without refreshing his recollection and that, therefore, he should not have been allowed to look at the books, is not well taken, because no such objection was raised upon the trial.

The question as to where the man who made the entries in the books was at the time of the trial seems to have been entirely immaterial. The witness testified that he had examined these books from time to time to see if any mistake was made, and that at the time he knew the entries were correct.

It is true that it subsequently appeared that there were discrepancies between the amount of rents as given from his recollection by the witness and those which were entered in the books, and that in those instances the witness testified that the books must be wrong. But that circumstance was only to be considered by the referee in determining the weight to be given to the testimony of the witness.

The objection to the question, “Did you consider the presence of the Elevated Railroad at the time you purchased in 1890 as an injury or a benefit to the property ” was immaterial. It was not a question as to what he considered the structure when he purchased the property, but what it actually was.

The judgment should be affirmed, with costs.

O’Brien and Barrett, JJ., concur.  