
    Karl M. Wallach, Resp’t, v. The Manhattan Railway Co. et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 4, 1891.)
    
    Railboad—Elevated—Evidence—Expert testimony.
    In an action to enjoin the operation of an elevated railroad and for damages, it is error to allow an expert to testify as to the value of plaintiff's property without the railroad in front of it.
    
      Appeal from judgment on the decision of a judge at equity term. Action to enjoin the maintenance and operation of defendants’ elevated railroad along the street in front of plaintiff’s premises, and for past damages. The judgment awards damages and an inj unction.
    
      Philip Carpenter and Joseph B. Reilly, for resp’t; Julien T. Davies and Samuel Blythe Rogers, for app’lts.
   Pryor, J.

Of the several points presented by the appellants, but one will be considered; because that one is obviously and indisputably fatal to the judgment.

To a witness called by the plaintiff he propounded this question: “What would be the present value of this property without the road in front of it?” The defendants interposed, timely and sufficeint objection to the question ; but the court allowed it,, to which the defendants duly excepted, and the witness answered “About $17,000 each.” The witness had already testified that, with the railroad in front of the houses, they are worth $14,00(> each. Again, the witness was asked: “ What would be the fair rental value without the structure in front and the passing trains ? ” Timely and sufficient objection was interposed to the objection; but the witness was allowed to answer it, to which the defendants duly excepted, and he said, “ about $1,550 or $1,600 each house.” The witness had already testified that the present rental value of the property is “about $1,250 for each house."

Whatever doubt may have prevailed hitherto in the courts' and with the profession as to the incompetency of this evidence is dissipated by recent decisions of the court of appeals. In Roberts v. The Manhattan Railway Company, 40 N. Y. State Rep., 454, the court ruled that such evidence is inadmissible, and'that its introduction is reversible error, although other evidence in the case might suffice to sustain the judgment. The adjudication is the same in Doyle v. The Manhattan Railway Company, 40 N. Y. State Rep., 474, and Gray v. The Railway Company, id, 478.

The respondent argues that error in the admission of evidence-as to fee value is inoperative to affect the judgment, but the contention is untenable; for, first, here the incompetent evidence was admitted to show depreciation in rental value, and, secondly, the court of appeals has decided that such evidence as to fee valuéis equally fatal error. Roberts' case; Gray's case. This and other courts below had ruled the contrary; but the authority of the court of appeals is imperative upon us.

Judgment reversed, and new trial ordered, costs to abide event.

Daly, Ch. J., and Bischoff, J., concur.  