
    John Courtney, Respondent, v. The New York Elevated Railroad Co. et al., Appellants.
    (New York Common Pleas
    General Term,
    November, 1894.)
    Proof that the values of real estate in the vicinity have gradually recovered from the effects of the panic of 1873 until they have reached a point in excess of the values prevailing before that time, while those of property abutting upon the elevated road have further declined, is sufficient to show that such abutting property has sustained substantial pecuniary damage from the maintenance and operation of the road.
    As between third persons, declarations of an agent, at the time of an accounting by him, as to the source from whence the moneys accounted for were derived, are not admissible in evidence, unless such declarations consist of the entries of an absent or deceased agent made in the course of the performance of duty.
    Appeal from a judgment for the plaintiff which was entered upon the report of a referee.
    Action by an abutting owner for injunctive relief and to recover damages for the loss of rental value caused by the maintenance and operation of the defendants’ elevated railroad in the street in front of the plaintiff’s premises.
    
      J. Asjpvnwall Hodge, Jr., for respondent.
    
      J. O. TJiomson, for appellants.
   Bisohoee, J.

The action was brought by the owner of the premises 322 East Thirty-fourth street, between First and Second avenueSjin the city of New York, to enjoin the operation of the defendants’ elevated railroad, which extends along said street from Third avenue to the ferry on the East river, a distance of about three blocks, and for the recovery of past damages arising from a loss of rents alleged to have been occasioned by the presence of the railroad. The judgment for the plaintiff is assailed for alleged insufficiency of the evidence to show substantial pecuniary damage as a result of the maintenance and operation of the railroad, and for alleged erroneous rulings on the trial.

It appears in evidence that the plaintiff’s premises consist of a lot of land which is twenty-five feet in width and ninety-eight feet nine inches in depth, and abuts on the railroad; that East Thirty-fourth street is a wide street, and that the rental value of premises on such streets is uniformly higher than that of premises of like character on other streets; that the ratio of rental to fee value has declined since 1880 to nine per cent, it having theretofore been ten per cent; that from 1811 to about May, 1886, there was erected upon the lot in question a four-story building, twenty-five feet wide and forty-five feet deep, the first floor of which was used as a store, and the three remaining floors each subdivided into a front and rear apartment of four rooms each as tenements; that during the year from May, 1886, to May, 1881, the building was replaced by a new one, being’ five stories in height, in width the same as the old one, and eighty-five feet in depth, the first floor of which was likewise used as a store, and the upper floors each subdivided into four apartments, two front and two rear, of four rooms and three rooms each, respectively, as tenements; that immediately before the commercial panic of 1813 the fee value of the premises was $15,000, the rental value $1,500 ; that in the general depression which succeeded the panic these values declined until, in 1811, they had reached $13,000 and $1,300 respectively; that in 1818 the railroad was constructed, and its operation commenced in 1819; that in 1811 there began a period of gradual recovery of real estate values from the effects of the panic, which extended to the locality of the plaintiff’s premises ; that at the time of the trial these values had reached a point which was in excess of the values prevailing before the panic, but that property abutting on the railroad, and in character and situation similar to the plaintiff’s, had further declined below the values of 1811. To illustrate, the premises 318, 320 and 324 East Thirty-fourth street, which adjoin the plaintiff’s premises and are identical with the latter as they existed up to May, 1886, in 1813 possessed a fee value of $15,000, and a rental value of $1,500 each, and in 1811 a fee value of $13,000, a rental value of $1,300. At the time of the trial the actual rental value was shown to be about $1,150, or $150 less than in 1877. At the changed ratio of rental to fee value these premises were worth, at the time of the trial, about $12,800 each. Had the rental value of 1877 continued they would have been worth about $14,450 each, and if the rental value of 1873 had been restored, about $16,650. From the foregoing facts it was fairly deducible that the plaintiff had sustained a loss of rents averaging $150 a year, and a damage to the fee of $1,875, the amounts awarded by the referee. Nothing was awarded for the year during which the new building was in process of construction, and, allowing for the increased space available for rental purposes in the new building, there was nothing to indicate that the rental and fee values of the plaintiff’s premises would not have been greater than what they were shown to be at the time of the trial had the cause of depression of these values not been extant.

Granted, that as between principal and agent the presumption will avail, in the absence of evidence to the contrary, that the latter has properly accounted for all moneys which have come into his hands in the course of his employment (Turner Kouwenhoven, 100 N. Y. 115, 121), it does not follow that, as between third persons, the declarations of the agent, at the time of an accounting by him, concerning the source from whence the moneys accounted for were derived, are admissible in evidence. Ocean Nat. Bank v. Carll, 55 N. Y. 440. Such evidence is clearly hearsay. An exception exists where the declarations consist of the entries of an absent or deceased agent, made in the course of the performance of duty. 1 Rice Ev. 392, § 213. Hence the referee properly excluded the testimony of the witnesses Holly and Turley, which was to the effect that the moneys paid them by their agents were received by the latter for rent of particular premises, and for particular periods, when it appeared, from the admissions of the witnesses, that the only knowledge which they had of the facts was derived from the declarations of their agents to them. Other alleged errors in the rulings of the referee do not seem to merit discussion.

The judgment should be affirmed, with costs.

Bookstaveb and Pbyob, JJ., concur.

Judgment affirmed, with costs.  