
    George H. Moore et al., Ex’rs, Resp’ts, v. The New York Elevated R. R. Co. et al., App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed January 5, 1891.)
    
    Railroads—Elevated—Evidence .
    In an action to restrain the operation of an elevated railroad and for damages, it is not prejudicial error to allow a witness to testify directly to the amount of depreciation in the rental value of plaintiff’s premises, where the witness also gives the rental value before and after the railroad was built, the difference being the amount of depreciation testified to.
    Appeal by defendants from judgment entered upon verdict against them upon and from denying their motion for a new trial made upon the judge’s minutes.
    
      Brainard Tolies and Julian T. Davies, for app’lts; A. Edward Woodruff, for resp’ts.
   Per Curiam.

The learned judge was right in holding that the judgment offered in evidence by the defendants did not adjudicate concerning anything in issue in the present action.

A witness, Martine, was allowed to testify to the amount of depreciation in the rental value of plaintiff’s property due to the elevated railroad. This was objected -to by defendants on the ground that the witness was asked to give an opinion as to what the jury was to decide. The counsel objecting avowed that he did not object to an opinion being given as to rental value before and after the elevated railroad was built in front of the premises. Although the witness directly spoke as to the amount of depreciation, the answer was not injurious, for at the same time he gave the value before and after the railroad was built, the difference being the amount of depreciation he testified to.

The defendants asked that the complaint be dismissed on the ground that the plaintiff was never in possession of the premises. This was not correct, because if not in occupation during the terms of leases given, they were in occupation between those terms. No questions as to damages were raised upon this basis.

It is not necessary to determine whether the recovery of interest was lawful. No exception that would raise such a question was taken.

Judgment and order affirmed, with costs.

Sedgwick, Oh. J., and Ingraham, J., concur.

Freedman, J.

I concur, but wish to add that under the decision of Hamilton v. Manhattan Railway Co., 30 N. Y. State Rep., 17, the leases could make no difference on the question of liability.  