
    (69 Hun, 190.)
    LAZARUS et al. v. METROPOLITAN EL. RY. CO. et al.
    (Supreme Court, General Term, First Department.
    May 12, 1893.)
    1. Elevated Railroads—Injuries to Abutters—Evidence.
    In an action for damages caused by the construction of an elevated railroad In the street in front of plaintiffs’ premises, where it is shown by plaintiffs that some of the rooms in the building had become vacant after the road was built, evidence as to the amount of rent asked for such rooms is competent in behalf of defendants as bearing on the cause of the vacancy.
    2. Same—Conclusions op Witness.
    Testimony of an occupant of part of the premises as to whether the con- ' struction and operation of the road interfered with his business is not objectionable as calling for a conclusion, where the witness had already testified as to the physical effects of the road, and that his rent had steadily risen until it had almost doubled.
    3. Same—Opinion Evidence.
    Testimony of witnesses examined as experts in regard to value, as to whether the elevated railroad rendered the premises more accessible than they would otherwise be, was properly excluded.
    
      4. Same—Value op Easements.
    The easements taken by the construction and operation of the railroad . have only a nominal value apart from any damages to the land resulting from the taking.
    5. Same—Action por Damases—Parties.
    The fact that the will of plaintiffs’ ancestor gives the executors a power of sale of the land does not require them to be made parties to the action.
    Appeal from judgment on report of referee.
    Action by Sarah Lazarus and others against the Metropolitan Elevated Railway Company and another. From a judgment in favor of plaintiffs, defendants appeal.
    Reversed.
    For former report, see 22 N. Y. Supp. 1106.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    Davies, Short & Townsend, (A. O. Townsend and Julien T. Davies, of counsel,) for appellants.
    
      Stickney, Spencer & Ordway, (N. S. Spencer, of counsel,) for respondents.
   VAN BRUNT, P. J.

This action was brought to enjoin the operation of the defendants’ road in Trinity place, in the city of New York, in front of plaintiffs’ premises, situate on the northeast corner of Trinity place and Exchange alley, having a frontage on Broadway, and extending along Exchange alley to Trinity place. The referee before whom this action was tried has not thought it necessary to give any intimation as to how he arrived at the results which were included in bis report, which contains some rather novel conclusions of law; and, as a consequence, this court has been compelled to examine the whole of the bulky record presented upon this appeal, for the purpose of ascertaining, if possible, the theory upon which the ref eree has reached the conclusions embodied in Ms report; and these labors have resulted in but little success, but it seems to be apparent from an examination of such report that the referee has fallen into serious errors, in consequence of which a new trial must be had. There is one peculiar feature wMoh is presented by Ms finding in Ms report in respect to past damages, and the evidence which was introduced in respect thereto, wMch shows that he seems to have been of the opiMon that vacant rooms, caused perhaps by the demand of exorbitant rentals, formed an indication of the damages sustained by the maintenance and operation of the defendants’ railroad, because all evidence was excluded by the referee in the case of rooms wMch were vacant in the ' building as to the amount of rent wMch was asked for the same, ■and the amount of annual rentals at the time of the making of the report, included therein, was the amount for which the building was then rented, exclusive of such vacant rooms. We find that certain rooms which had been accustomed to be rented happened to be vacant at tMs time, and the question was asked of the witness who had charge of the premises; ‘What is the charge or price at wMch you hold that room at the present time?” TMs question was objected to and excluded, and the referee finds the actual rentals of the premises excluding the vacant rooms, and we have no indication whatever as to whether the cause of such vacancy may not have been the demand of exorbitant rents. E such a rule were to prevail, all that it would he necessary for the owner of premises upon the line of the elevated railroad to do would be to ask rents far beyond the amounts wMch persons always pay for similar accommodations, and he would have an empty building, and could claim that it was the result of the operation of the railroad, and could recover as damages the total value of bis property. The results of tMs ruling necessarily affect both past and future damages, because the value of the premises is necessarily affected by the annual rental’received therefrom. These premises having been let during certain of the periods covered by the evidence as a whole, and sublet, the referee excluded evidence upon the part of witnesses upon the part of the plaintiffs as to the occupancy of the building, and the rent thereof during the time when said building was rented as a whole to certain tenants, and sublet by them. It is sought to sustain such ruling now by the claim that the witness had no personal knowledge in regard to this matter, and therefore could not testify thereto, and that a subsequent witness did give testimony upon that point; but no objection was taken upon that ground, and it is impossible for the court to determine -whether the witness had personal knowledge or not, until he claimed inability to answer because of ignorance. The objection was based upon the ground, apparently, that such evidence was incompetent and immaterial,' which clearly was error; and, although a subsequent witness may have given testimony which covered this ground, —which we have been unable to determine by an inspection of this record,—the rulings show that the referee had an erroneous view in regard to the relevancy of testimony affecting the question of value, and it may have pervaded the whole of his action.

The referee further excluded evidence from occupants of the premises as to whether in fact the structure of the railroad and the operation of its trains interfered with the business of such occupant, upon the ground that it called for the conclusions of the witness. The witness had already testified to the physical effects of the building and operation of the road, and that his rental had steadily risen, until it had nearly doubled, and that most of his goods were delivered at Trinity place; and he was then asked the question whether, as matter of fact, the elevated structure and the operation of trains in Trinity place interfered with his business as a restaurant keeper, and this was excluded upon the ground that it called for a conclusion of the witness. And the further question was asked, “Have, you ever noticed any difficulty attending the delivery of goods in the rear of your building?” which was excluded for the same reason. These questions certainly called for no greater conclusion of a witness than much which he had testified to in regard to the physical effects resulting from the maintenance and operation of the road. They were facts which he was as competent to testify to as anybody else,— as to whether his business was injured by that road, or whether access to his premises was affected thereby. It might as well be said that the witness could not testify as to the distance between two given objects in sight, as that is a conclusion as much as was the evidence asked from the witness. Both are the results of mental operations. These questions would seem to be especially pertinent, as the witness was examined on the part of the plaintiffs. Another witness was examined on the part of the plaintiffs for the purpose of establishing the facts of the maintenance and operation of this road and, having testified upon this point, was asked the question: “The elevated road has never interfered with your work and. occupation there, has it, personally?” This question was objected to as calling for a' conclusion, and was excluded. And subsequently the witness was asked: “Did you personally experience any inconvenience in your work from tke presence of the elevated railroad?” This was answered, “It has never interfered with me in any way.”

Objection is also' taken to the refusal of the referee to permit certain witnesses to testify—some of whom were examined as experts as to value—whether the premises in suit were rendered more accessible from uptown and distant points by reason of the presence of the elevated road at Rector street, and whether this station is located conveniently to these premises, or whether the premises are easily reached from the Rector street station, and whether the railroad in Trinity place renders the premises in suit more accessible than they otherwise would be. There seems to be no error whatever in these rulings, because the referee was as competent to judge of these facts as the witnesses. The situation of the premises, the construction of the road, etc., were facts proven before the referee, and it was his province so to. do, and not that of the witness.

There seems also to be an exception to a refusal to find, which requires notice. The referee was asked to find that the easements appurtenant to the plaintiffs’ land taken for railroad uses, apart from any damages to said land from such taking, have in themselves only a nominal value, which was refused. In the case of Bookman v. Railway Co., (N. Y. App.) 33 N. E. Rep. 333, a similar request was made and refused, and the court held that the request should have been found; and the refusal to find showed that the court misapprehended the principles of law laid down in the cases of Newman v. Railroad Co., 118 N. Y. 618, 23 N. E. Rep. 901; and Bohm v. Same, 129 N. Y. 576, 29 N. E. Rep. 802. The learned counsel for the respondents claims that the referee' committed no error by this refusal because the case at bar is substantially different from the cases in which this rule was enunciated in the following particular: That in the Sperb, Bookman, and Sutro Cases, (33 N. E. Rep. 319, 333, 334,) the court said they had carefully read the evidence, and failed to find that the plaintiffs had suffered any damage by reason of the defendant’s acts; and the counsel urges that from that fact the court reasoned that the trial court must have failed to apply the proper rules of law, and that they were confirmed in that conclusion by the refusal to find not only the request in question, but several others of like tenor, all tending to show to them that the proper rule had not been applied. We have read all that the opinion in the Bookman Oase contains, and we fail to find that the court anywhere stated that they failed to find that the plaintiffs had suffered any damage by reason of the defendant’s act. What they did say is that they were satisfied that in the estimate of damages injustice was done to the defendant, and the proper rules of law were not applied in awarding the judgment,—a very different condition of affairs from that assumed by the counsel. It is true that other findings are referred to as having been refused without any just reason. But the court expressly stated that the finding to which their attention was called was in that case a crucial test as to the principles under which the court acted; and they say that because of the principles laid down in the Newman and Bohm Cases, it was important for the defendant to have a finding that substantially all the damages were consequential, so as to give room for the allowance of benefits. This importance is as great in the case at bar as it was in the Bookman Case. But it seems to us that the requirements of that case were met by the finding of the referee that the plaintiffs were not entitled to recover damages in this action except to the extent, if any, by which the disadvantages of defendants’ railroad have exceeded the advantages thereof to the said premises, which seems to indicate that he had in mind the points which were pronounced to be so important in the Bookman Case.

It is also urged upon the part of the appellants that it was error not to compel the bringing in of the executors as plaintiffs in the action, upon the ground that they had a power of sale, and . there was no proof that debts and legacies had been paid, or that the estate had been administered upon. We do not see that the executors of the ancestor were necessary parties merely because of the existence of a power of sale in the will of such ancestor, and it was incumbent upon the defendants to show some reasonable ground for apprehending some infirmity of title by reason of the claimed unsettled condition of such estate.

The point is also made that the referee erred in allowing all the past damages to the plaintiffs in this action. It appears that Moses Lazarus, the ancestor, died on the 9th of March, 1885, and tire past damages recovered are computed from this date. He left seven children (the plaintiffs) and their mother, who, under his will, were devisees of the premises in question. Emily Lazarus died on the 19th of February, 1887, intestate, leaving the plaintiffs her only heirs at law and next of kin. It is perfectly clear that her administrator is entitled to her share of the damages accruing between the 5th of March, 1885, and the 19th of February, 1887. But the difficulty with the appellants’ objection is that this question was raised for the first time upon this appeal. If it had been raised at the trial, we think the court should, at least, have excluded her share from the amount recovered; but the better practice would have been to bring in her administrators, in order that the whole matter might be settled. It is urged that, under the provisions of the Code as to defects appearing upon the face of the complaint, it must have been taken advantage of by demurrer, or it is waived; but the counsel confuses the rule prevailing in actions at law and actions in equity. The court, in equity, is bound, before rendering judgment, to bring in all parties who may be interested in the result, whether upon the demand of the parties or not.

There are various other exceptions to which attention might be called, but it does not seem to be necessary to discuss them in detail, as we have been left entirely in the dark, as already suggested, as to the method by which the referee has reached his conclusions; and it is impossible for us to say but that he may have been affected to the injury of the defendants by the errors to which attention has been called, and it would seem probable from the nature of many of the rulings that the referee had an erroneous view of the effect of evidence. Under these circumstances, therefore, there is nothing to be done except to reverse the judgment, and order a new trial before a new referee to be appointed by this court, with costs to the appellant, to abide the final event. All concur.  