
    Charles H. Colton et al. v. The New York Elevated Railroad Co. et al.
    (New York Common Pleas—Special Term,
    March, 1894.)
    In actions against the elevated railroads testimony of an expert as to prices paid upon actual rentals and sales of particular premises, other than the premises in suit, is inadmissible except on cross-examination.
    A witness engaged in the business of buying, selling, renting or appraising real estate, and shown to he possessed of the requisite qualification from experience, may testify directly to his opinion as to the value of the premises in suit at different periods, and may also testify directly to his opinion whether or not fee and rental values generally and in the vicinity of the premises in suit have diminished or increased since particular periods and to what extent; but his testimony must be confined to the points in issue, and he cannot "be examined on the direct as to the value of particular property other than the property in suit.
    Motion to strike out evidence.
    This was one of the usual actions for an injunction and damages caused by the taking of easements by the elevated railroad.
    Upon the trial of this action at the February Sj>ecial Term, before Mr. Justice Bischoff, certain questions were asked by plaintiffs’ counsel of an expert wdtness as to the fee and rental value of premises along East Thirty-fourth street, where the property in suit was located, other than the premises in suit. This evidence was objected to on the part of the defendants “ on the ground that an estimate of the fee value in other property than that in suit upon the line of defendants’ elevated railway is contrary to the law as laid down by the Court of Appeals in Matter of Thompson, 127 N. Y. 463.”
    The evidence was admitted, but this motion was afterwards made to strike it out.
    
      J. Aspinv)all Hodge-, Jr., for plaintiffs. •
    
      It. L. Maynard, for defendants.
   Bischoff, J.

Under the ruling of the Court of Appeals in Matter of Thompson, 127 N. Y. 463, I shall feel bound to reject evidence of the prices paid upon actual rentals and sales of particular premises, other than the premises in suit, when it is offered, except on cross-examination. Though the case referred to holds specifically only that the prices paid upon sales of particular premises, other than the premises in suit, though in the immediate vicinity, furnish no rational criterion by which to determine the value of the last-mentioned premises, I am unable, upon reflection, to discover any sufficient reason for holding that the criticism of the proffered evidence by the court does not apply with equal force to rentals. The principle underlying the decision was applied in Blanchard v. N. J. Steamboat Co., 59 N. Y. 292, 300, and Gouge v. Roberts, 53 id. 619, both cases of chattel property.

With reference to my intimation that the testimony of plaintiffs’ witness, Martine, concerning his opinion of the fee and rental value of particular premises, other than the premises in suit, should be stricken out, I deduce the following from principle and authority:

1. A witness engaged in the business of buying, selling, renting or appraising real estate, and shown to be possessed of the requisite qualification derived from his experience, may testify directly to his opinion concerning the value of the premises in suit at different periods. Clark v. Baird, 9 N. Y. 193; People ex rel. Mayor, etc., v. McCarthy, 102 id. 630-639; Roberts v. N. Y. El. R. R. Co., 128 id. 455, 465; Rogers Expert Testimony, § 155, p. 195.

2. He may likewise testify directly to his opinion whether or not fee and rental values generally and in the vicinity of the premises in suit have diminished or increased since particular periods, and to what extent. Drucker v. Manhattan R. R. Co., 106 N. Y. 157; Golden v. Met. R. R. Co., 1 Misc. Rep. 142; Sherwood v. Met. Ry. Co., 36 N. Y. St. Repr. 195; Livingston v. Met. Ry. Co., 44 id. 830. The admissibility of the first-mentioned testimony arises from the necessity of the case, the premises in suit being sui generis. The testimony secondly mentioned tends to prove the course of values, and is relevant and material to the question at issue, namely, whether or not the premises in suit have sustained pecuniary damage. Its competency is likewise due to the fact that the witness has special learning and skill in such matters which he has derived in his particular calling, whereby he is required to keep himself informed thereof.

3. The testimony of a witness called as an expert must, however, as in the cases of other witnesses, be confined to the points in issue. Rogers Expert Testimony, § 38, p. 87; Stephens Dig. Law of Ev., art. 49. The value of particular property other than the property in suit is irrelevant. Demarest v. El. R. R. Co., Law, p. 161; Blanchard v. N. J. Steamboat Co., 59 N. Y. 292, 300 ; Gouge v. Roberts, 53 id. 619. Hence the witness cannot be examined with regard thereto.

4. But, as with other witnesses, one called as an expert to give his opinion may be interrogated concerning matter otherwise irrelevant for the purpose of impeaching his credibility or disqu-oving the accuracy of his opinion on cross-examination. The cross-examining party is, however, bound by the statements of the witness concerning such collateral matter, and may not contradict him. Rogers Expert Testimony, § 38, subd. 4, p. 88; People v. Ryan, 55 Hun, 214, 218, and cases there cited; Gandolfo v. Appleton, 40 N. Y. 533 ; 1 Rice Ev. 632

It follows that the testimony of plaintiff’s witness, Martine, with regard to his opinion concerning the fee and rental values of particular premises, other than the premises in suit, was inadmissible on the direct examination, and that the objection of defendants’ counsel thereto should have been sustained. I do, therefore, now reverse my ruling and direct that the objections be sustained and the testimony objected to be stricken out. Plaintiff may, of course, take an exception to this ruling. .

In what I have said I do not wish to be understood that it is improper to interrogate the witness, called as an expert, on the direct examination concerning the fact of sales or rentals made by him generally or in the vicinity of the premises in suit, and to require the witness to state the particular property sold or rented by him. I mean only to exclude evidence of the sums paid upon such sales or rentals. The fact of sales or rentals by the witness goes to his competency as an expert, and evidence thereof is for that reason admissible.

Motion granted.  