
    Alexander Kuh, Resp’t, v. The Metropolitan Elevated R. R. Co. et al., App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed May 5, 1890.)
    
    1. Railroads—Evidence.
    The admission of testimony in an action to enjoin the operation of an elevated railroad, as to an offer made for plaintiff's premises before the building of the road, is not fatal to the judgment, where it fully appears that the award for loss of fee value is a reasonable one, and bears the usual relation between fee value and rental value at the legal rate of interest.
    
      2. Same.
    Testimony to the effect that other owners of property in the neighborhood had difficulty in renting their flats, after the building of the road, is admissible to show the uniform operation of a general cause, and that plaintiff's loss of rents was not attributable to his own neglect.
    Appeal from judgment entered upon the decision of a judge at an equity term.
    Action to restrain the operation of defendants’ railroad in front of plaintiff’s premises, and for damages.
    
      Davies & Rapallo, for app’lts; Peclcham & Tyler (Charles A. B. Pratt, of counsel), for resp’t.
   Freedman, J.

The only questions presented for review are raised by exceptions taken by the defendants to the admission of testimony.

Assuming that it was incompetent for the plaintiff to show that he was offered $42,000 for his Sixth avenue property before the defendants’ railway was constructed, yet it sufficiently appears from the whole case that the defendants were not prejudiced by it. The testimony of defendants’ experts seems to have been wholly discarded. Upon the testimony of plaintiff’s experts four times the amount which was awarded as damage to fee value might have been awarded.

Upon testimony which was competent, sufficient and found worthy of belief, the trial judge found during a period of six years an actual loss of rental value amounting to $150 for each year. It thus fully appears that the award of $2,500 for loss of fee value which was made, is a reasonable one under all the circumstances. It bears the usual relation between fee value and rental value at the legal rate of interest. A somewhat similar question was presented to this court in Ross v. The Manhattan Ele vated R. R. Co., 29 N. Y. State Rep., 517, decided during January, 1890, and it was held no ground for reversal

The testimony admitted as regards plaintiff’s Eighth avenue property to the effect that other owners of property in that neighborhood had difficulty in renting their flats after the construction of the elevated railroad, was proper under all the circumstances. It tended to show the uniform operation of a general cause, and that plaintiff’s loss of rents was not attributable to his own neglect, and consequently it also had a legitimate bearing upon the question of fee value as affected by loss of rents.'

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., and O’G-orman, J., concur.  