
    ELKAN BLUMENTHAL, Respondent v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.
    
      Action for damages and injunction because of the construction and operation of a railway in front of plaintiff’s premises—Opinions of witnesses as to damages, values, etc.
    
    The serious and most important question raised on this appeal, arose on an exception taken on the trial to the reception of the testimony of a real estate expert called on behalf of the plaintiff, when the following proceedings took place, viz.: “Q. What, in your opinion, is the value of the easements of light, air and access appurtenant to those premises No. 1277 Third avenue, which have been taken by the construction and maintenance of the elevated road as you have observed it to be maintained and operated ? Counsel for the defendants objected to the question as improper, incompetent, irrelevant; as assuming a fact not proven in the case; as involving an improper subject of damage, as it makes an inquiry on the subject that is not a proper subject of an opinion by the witness ; that the witness is not competent or qualified to give an opinion, and as contrary to the rule laid down in the McQean case. 
      The Court: The part of the question beginning with the words: ‘ As you have observed it ’ will be stricken out. Mr. Thomas : I make the same objection to the question as it stands.” The court overruled the objection and counsel for defendants excepted. Held, That this exception, taken by the defendants to this evidence, is valid and sufficient, and the determination of the trial judge, fixing the value of the easements taken by the defendants at §2,000, cannot be sustained.
    For reasons stated in the opinion of the court, a new trial was not ordered, but the court held that the rights of the defendants would be fully protected by a modification of the judgment, which was ordered.
    Before Freedman, P.J., McAdam and Gildersleeve, JJ.
    
      Decided January 11, 1892.
    Appeal from judgment entered in favor of plaintiff upon the decision of a judge at special term.
    
      Davies, Short & Townshend, attorneys, and Julien T. Davies and Samuel Blythe Rogers of counsel, for appellants, argued:—
    I. It was error to receive the opinion of a witness as to how much more plaintiff’s premises would be worth if the railway were not there, as in the testimony of George B. Curtis, a real estate expert, for plaintiff. “ Q. What, in your opinion, is the value of the easements of light, air and access appurtenant to those premises No. 1277 Third avenue, which have been taken by the construction and maintenance of the elevated road as you have observed it to be maintained and operated? Counsel for the defendants objected to the question as improper, incompetent, irrelevant as assuming a fact not proven in the case ; as involving an improper subject of damage; as it makes an inquiry on the subject that is not a proper subject of an opinion by the witness ; that the witness is not competent or qualified to give an opinion, and as contrary to the rule laid down in the McGean case. The court: The part of the question beginning with the words : ' As you have observed it ’ will be stricken out. Mr. Thomas : I make the same objection to the question as it stands. The court overruled the objection made, and counsel for the defendants duly excepted.” This ruling was error: McGean v. Manhattan R. Co., 119 N. Y., 219; Avery v. N. Y. Central R. Co., 121 Ib., 30, 41-47; Roberts v. N. Y. El. R. Co., 40 State Rep., 454; Doyle v. Met. El. R. Co., 40 Ib., 474; Gray v. Met. El. R. Co., 40 Ib., 478. This question was much more objectionable than those held improper in the cases cited. It left the witness to form a conclusion as to the legal nature and extent of plaintiff’s easement, and the extent to which the railroad impairs it. In the third point of this brief it will be seen that this is a very difficult question of law. Nor was the witness qualified as an expert in easements.
    II. It was error for the court to refuse to find as a fact that some special benefit existed. Following are the court’s rulings upon findings proposed by defendants. " Thirty-first: The number of persons passing through Third avenue and past the premises in suit and the stores in said premises is multiplied and increased to a large extent by the presence of the elevated railroad with its stations located at Seventy-sixth street.” Refused. " Thirty-second: The facilities thus afforded for reaching the said stores in the premises in suit and the increase of traffic upon Third avenue past the stores and the large number of persons brought together at this point daily in going and returning from said stations tends to improve the stores for business purposes and increase the rental and fee value of the premises in which they are.” Refused. To these rulings, exceptions were taken. These findings being, as we assert, supported by uncontradicted evidence, a question of law as to their materiality is raised. Kennedy v. Porter, 109 N. Y., 526, 534. There can be no doubt that the findings were, if true, material in point of law. Newman 
      v. Met. El. R. Co., 118 N. Y., 618. We now proceed to an examination of the evidence upon this point. Herbert H. Muxilow, who now has a store at No. 1287 Third avenue, testified as follows, speaking of the year 1872 : “ Mr. Blumenthal’s place adjoins mine. The stores, before the elevated railroad, that I now have, the same stores used to bring me in from $12 to $12.50 and $13. Now they bring me in $50 and $55 and $60. A station of the elevated railroad is near my premises; it is at Sevénty-sixth street and I am at Seventy-fourth street. I consider that station a benefit to the business that is carried on there in my premises. Considerable—that is to the public; also to the business that is carried on in my stores. I think it brings an increased traffic on Third avenue and that results in an increase of business to the stores themselves, to the business carried on there. This benefit to business by the elevated railroad applies to all stores along the line of the road on Third avenue.” This evidence was not disputed or contradicted in any way by plaintiff.
    III. It was an error to consider the annoyances caused by the running of the trains in computing the value of plaintiff’s easements. This point has just been squarely decided in defendant’s favor by the general term of the Supreme Court. Superb v. Met. El. R. Co., Law Journal for Nov. 17, 1891. Applying Forbes v. Rome, etc., R. Co., 121 N. Y., 505; Lahr v. Met. El. R. Co., 104 Ib., 268, and other cases. These defendants have as much right to emit smoke and cinders without compensation, as the Eome, Watertown & Ogdensburg Eailway has. Of course as to past acts they are liable for this as one of the incidents of the trespass. But the value of the easements is computed upon the theory that defendants will cease to be trespassers. This point is also pending undetermined before the Court of Appeals in Am. Bank Note Co. v. N. Y. El. R. Co., and Altmayer v. Same.
    
      
      Peckham v. Tyler, attorneys, and H. G. Awater of counsel, for respondent, argued :—
    The rulings of the trial court as to the admission of evidence do not require the reversal of the judgment. The only ruling of the court as to the admission of evidence which needs to be considered is the one found on page 124 of the Appeal Record. One George B. Curtis had been called as a witness for the plaintiff, and had testified that he was a real estate broker and had been in that business thirty years, and in the course of his business had had occasion to make himself familiar with the values on Third avenue and in the neighboring streets, and for the last twenty years had been familiar with the fee values on that street and in the vicinity. And that he had examined the premises in question. He was then asked the question: “ Q. What, in your opinion, is the value of the easements of light, air and access appurtenant to these premises No. 1277 Third avenue which have been taken by the construction and maintenance of the elevated railroad ? ” The words “ as you have observed it to be maintained and operated ” were at first added to the question, but these words were stricken out by the court. The question, as amended by the court, was objected to by the defendants: “As improper, incompetent, irrelevant; as assuming a fact not proven in the case ; as involving an improper subject of damage as it makes an inquiry on the subject that is not a proper subject of an opinion by the witness, that the witness is not competent and qualified to give an opinion, and as contrary to the rule laid down in the McGean case.” Analyzing this objection, it seems to resolve itself into the following: 1st. That the question was improper, incompetent and irrelevant. 2d. That it assumed a fact not proven in the case. 3d. That it involved an improper subject of damage. The reason which the counsel assigned for claiming that an . improper subject of damage was involved, to wit, as it makes an inquiry on the subject that is not a proper subject on the opinion by the witness, is only an argument and not a ground for objection. The ground of objection plainly was that proving the value of the easements of light, air and access was not the proper way of proving the damage to the plaintiff’s property by the construction and maintenance of the elevated railroad. 4th. That the witness was not competent or qualified to give an opinion. 5th. That the evidence called for was contrary to the rule laid down in the Mc-Gean case. An examination of the opinion shows that what was actually decided was that even if certain opinion evidence was inadmissible, yet the court would not reverse the judgment for such admission where the record showed to the satisfaction of the court that the defendant. could not have been prejudiced by it. The only rule, therefore, which can be considered to have been laid down by the McGean case is the rule laid down in so many other cases that the court must be satisfied upon an examination of the whole case that the appellant was prejudiced by the admission of incompetent evidence to warrant a reversal. This ground of objection may, therefore, be dismissed as either moaning nothing or as being too vague to warrant the court in taking any action on it. In the case of Lahr v. Metropolitan Elevated R. Co., 104 N. Y., 228, the Court of Appeals held that the Story case had definitely determined that an elevated road in the streets of a city operated by steam power and constructed as to form, equipment and dimensions like that described in the Story case, constituted, as against abutting owners, a taking of their property for which they were entitled to compensation. It was, therefore, at this point in the trial conclusively established before the court that the easements of light, air and access had been taken by the defendants, and it cannot be claimed that the question to the witness as to the value of these easements was in regard to a fact not proven. It might have turned out in the trial that by the decision of the court these easements would have been found to be only of nominal value, but that point had not yet been reached. The objection that the question was improper, incompetent and irrelevant was not sufficient to raise the point that the question called for inadmissible opinion evidence. Tire latest decisions of the Court of Appeals establish this point with great clearness. In the case of Kernochan v. The N. Y. Elevated E. Co. before the First Division of the Court of Appeals (decided December 1st, 1891), the Court by Andrews, J., said: “We have been inclined to hold in view of the course of trials in these cases against the elevated railway, that although the general objection of incompetency made to a question put to an expert asking his opinion might be deemed in ordinary cases sufficiently specific, nevertheless to apply that rule in these cases would be unjust, because the objection considered in connection with the course taken on these trials would not fairly lead the court or counsel to suppose that the objection was aimed at the mode of proof but rather to the competency of the fact to be proved. We think we should follow the instruction on the subject in the McGean case, 117 N.Y., 219, and hold that the objection did not raise the point that the opinion of the witness was inadmissible. An examination of the record in the Kernochan case shows that the question and objection there were in the following form: “ Q. What, in your opinion, would have been the rental value from May, 1882, to May, 1883, had there been no such elevated road in front of the property as has been described ? Counsel for defendant objected to the question as incompetent.” The objection in the Kernochan case for the purpose here was as broad as the objection taken in this case. In this case was added “improper and irrelevant.” The question was relevant enough if it was a proper method of proofj and the question was not improper if not competent. So that the objection really amounts to no more than the objection that the question was incompetent. In the case of Mortimer v. Metropolitan Elevated E. Co., decided at the same time with the Kernochan case above referred to, the objection took the following form : On the trial the plaintiff’s counsel propounded the following question to an expert witness : “ Q. To what extent, in your judgment, was the rental value of the property diminished by the structure and the passing of trains from the period from June 1,1882, down to the commencement of this suit; how much per year? Counsel for defendant objected to the question as improper, irrelevant and immaterial; as assuming that the property had been injured in that way, and as requiring the witness to separate such injury from that due to other causes. The court overruled the objection, and counsel for defendant duly excepted.” The Court of Appeals held, however, that there was no ground for reversal, and that the point that the question called for the opinion of the witness upon a matter that ought to be decided by the court was not raised. The opinion of the Kernochan and Mortimer cases are handed up herewith. But even if the point were sufficiently raised that the question called for the opinion of the witness, still the question would be admissible. The question here was simply as to the value of certain easements. These easements were property. The witness was an expert in this kind of projoerty, as it was a branch of real estate, and there was no reason why he should not be asked the value of a certain piece of real estate. Take a case where a railroad company was condemning a strip of land. An expert witness would be allowed to testify as to what, in his opinion, was the value of the piece of land which the railroad company proposed to take. Of course, this value would not necessarily be the amount the railroad company would have to pay, because, if they took part of a strip they would have to pay not only the value of the land taken, but also the damage to the land not taken. And so in this case, what the defendants must pay to the plaintiff is not simply the value of the easements but they must also pay the damage to the plaintiff’s property not taken. In the Newman case, 118 N. Y., 618, the court seemed inclined to think that the easements themselves had no value, and that the real damage was to the property not taken. If this view should prevail, of course the answers to the questions would be entirely harmless to the defendants, because it does not appear that anything has been allowed in this case for the easements as such, apart from the damage to the remaining property, or that anything was allowed for the easements alone¡ If, however, it should appear that the easements do have a value themselves, then it was not improper to ask an expert witness as to the amount of that value.
   By the Court.—Freedman, P. J.

The action was brought to restrain the defendants from maintaining and operating their elevated railway in front of plaintiff’s premises, and as incidental thereto to recover damages for loss of rental value occasioned by the past maintenance and operation of the road. The premises, known as No. 1277 Third avenue, are on the east side of Third avenue, near 73d street. The lot is 26 feet and half an inch wide and 80 feet deep, and is occupied by a five-story building used as tenements and stores. The trial judge awarded $250 for past damages from March 28, 1888 (when plaintiff became the owner of the premises) to November 13, 1890 (the date of the trial of the action), and decreed an injunction unless the defendants, within 90 days from notice of the entry of judgment, acquired by statutory proceedings the easements of the plaintiff used by the defendants for their road, or, within the same period, paid to plaintiff the sum of $2,000 which he found to be the value of such easements.

Upon an examination of the whole case, I find that the record presents but one serious question:

At the trial the following question was put to George B. Curtis, a real estate expert, called on behalf of the plaintiff, and the following proceedings took place, viz.:

Q. What, in your opinion, is the value of the easements of light, air and access appurtenant to those premises No. 1277 Third avenue, which have been taken by the construction and maintenance of the elevated road as you have observed it to be maintained and operated ?

Counsel for the defendants objected to the question as improper, incompetent, irrelevant, as assuming a fact not proven in the case, as involving an improper subject of damage, as it makes an inquiry on the subject that is not a proper subject of an opinion by the witness, that the witness is not competent or qualified to give an opinion and as contrary to the rule laid down in the McGean case.

The Court: The part of the question beginning with the words As you have observed it ” will be stricken out.

Mr. Thomas : I make the same objection to the question as it stands.

The Court 'overruled the objection and counsel for the defendants duly excepted.

A. About §3,000; I mean the impairment of fee value, etc.

The trial judge evidently was not misled by the answer, for he awarded only §2,000, and the other evidence in the case fully sustains his finding in this respect, especially when it is considered that all the stories above the stores were used for residential purposes and that the nearest station from which the stores might have derived any benefit, was more than two blocks away. Nevertheless, as one of the specific grounds of the objection was that the fact sought to be elicited was not a proper subject of an opinion by the witness, the defendants brought the case within the decisions made by the Court of Appeals in the cases of Roberts, Doyle and Gray, and the error cannot be disregarded under the doctrine of the cases of McGean, Kernochan and Mortimer. I am therefore compelled to hold that the exception taken by the defendants in this case to the piece of evidence set forth is a valid and sufficient one and that the determination of the trial judge fixing the value of the easements taken by the defendants at the sum of $2,000 cannot be sustained.

But inasmuch as no error was committed in any other respect and the evidence fully establishes that the fee damage is of so substantial a character as to entitle the plaintiff to injunctive relief and, as incidental thereto, to the recovery of past damages, I deem it to he my duty to consider whether a new trial cannot be obviated.

It has been held in the Galway case recently decided by the Court of Appeals (40 N. Y. State Rep., 145), that the provision for the payment of the fee damage, as the equivalent of the property taken, in avoidance of the injunction in this class of cases, is purely an act of grace and favor to the defendants. True, the discretion of the court, in making such a provision, is not an arbitrary or unlimited one, and whenever the court does proceed to make it, the amount must be determined upon competent and legal evidence. Roberts v. N. Y. Elevated R. R. Co., 40 N. Y. State Rep., 454; Doyle v. Metropolitan Elevated R’y Co., Ib., 474; Gray v. Same, Ib., 478.

So there is, as was said by Finch, J., in the case of the American Bank Note Co. v. The New York Elevated R. R. Co., 129 N. Y., 252, no difficulty in assuming that the alternative damages are awarded to the same extent and for the same elements as the compensation given in a special proceeding for the condemnation of land under the law of eminent domain. Such a process in each case ends in the same substantial redress. The form is different, but the result is identical. It follows, therefore, that the alternative damages of equity must be such and only such as would be given in a proceeding for the condemnation of lands for a railroad use, due regard being had to the different characteristics of the property to be taken. By referring back to Taylor v. The Metropolitan Elevated R’y Co., 50 N. Y. Sup. Ct., 311, it will be found that such was substantially my opinion even in an action brought at law for the recovery of damages.

And finally it may be said that, inasmuch as the abutting owners permitted the road to be completed and put into operation before they took any steps to enforce their rights, it would not be equitable, at this late period, to enjoin tbe operation of the road without giving to the defendants a reasonable time within which to pay.

I believe I have now fully and fairly stated all the limitations upon the discretionary power of the court to make provision for the payment of the fee damage, as the equivalent of the value of the property taken, in this class of cases, but within these limits the making of any such provision, in avoidance of the injunction, is still an act of grace and favor to the defendants. But making such provision is not the only provision which a court of equity may make as an act of grace and favor to the defendants. After having determined that the fee damage is sufficiently substantial' to entitle the plaintiff to injunctive relief, the court may grant an injunction against the maintenance and operation of the elevated railway, and, as an act of grace and favor to the defendants, stay the operation of the injunction for a reasonable time to enable the defendants to acquire title to the property taken by agreement or condemnation proceedings. As long as the time fixed is sufficient for that purpose, the defendants have no right to complain. What is sufficient time may depend upon the peculiar circumstances of each case, and upon this point as well as every other point involving the exercise of discretionary power, the defendants will not he concluded by the finding of the trial judge, but may ask to have the same reviewed by the general term. I can find nothing in the opinion of Eabl, J., in the case of Gray which conflicts with the views expressed by me, for what was said there was said on plaintiff’s appeal from an order of the general term which had reversed the judgment and ordered a new trial. That reversal had taken place because of a finding made by the trial judge that the premises would not be worth as much as they now are, had the railway and stations not been built.” It was in view of this finding and in respect of the claim of' the plaintiff that, notwithstanding said finding, the general term ought not to have reversed the whole judgment, but should have permitted that portion of the judgment to stand which awarded the injunction, that Eabl J., used the following language, viz.:—“ The injunction is so dependent upon the damages that the general term could not with propriety reverse the judgment as to damages and permit it to stand as to the injunction. But even if it could have reversed the judgment in part, it is at least generally in the discretion of the court when it finds error in part of a judgment requiring a reversal of such part, to reverse the whole judgment, and that discretion will not, certainly, except under peculiar circumstances, which do not exist here, he interfered with upon appeal to this court.”

In the pioneer of this class of cases, Story v. N. Y. Elevated R. R. Co., 90 N. Y., 122 (* 179) the opinion of the Court of Appeals delivered by Tracy, J., concludes as follows, viz.: —“ Seventh. The injunction prohibiting the continuance of the road in Front street should not be issued until the defendant has had a reasonable time after this decision to acquire the plaintiff’s property by agreement, or by proceedings to condemn the same.”

The rule thus laid down has never been disturbed, although since that time the trial courts have in most cases undertaken the laborious task of fixing the value of the property taken. But in the recent case of Galway (40 N. Y. State Rep., 145) it was expressly held by the Court of Appeals that neither party to the action can compel the trial court to determine the question.

Having now fully demonstrated that in every case, in which it appears that the fee damage is sufficiently substantial to entitle the plaintiff to injunctive relief, the injunction may be decreed without an assessment of the fee damage, provided its operation be stayed for a reasonable time to enable the defendants to acquire title to the property taken by agreement or condemnation proceedings, and that the general term, in the exercise of a sound discretion, may review and determine the question of reasonable time, and it also having been shown, that the case at bar is such a case, it only remains to be seen to what extent the judgment appealed from should be modified.

The action was begun October 5, 1888, and its commencement was notice to the defendants that the plaintiff made a claim of a substantial character. Judgment was entered April 8, 1891, and by its terms the defendants had 90 days from notice of its entry within which to acquire by statutory proceedings the property taken from the plaintiff or to pay the sum fixed by the trial judge as the value of such property. Although apparently dissatisfied with the amount thus fixed, they omitted to take any steps to have any other amount determined by condemnation proceedings. They simply endeavored to prevent the plaintiff, by every device known in legal procedure, from making any headway towards the enforcement of his rights. The same tactics are pursued by the defendants in most of the cases belonging to this class, and their number is very large. The consequences involve serious hardship to other litigants whose cases are greatly delayed, and it is with the view of protecting, if possible, the rights of these other litigants that I have made this extensive examination for the purpose of ascertaining whether a new trial could not be refused to the defendants without a violation of any of their rights.

Under all the circumstances the rights of the defendants will be fully protected by the modification of the judgment as follows, viz.:

Subdivisions II, III, IV and V of the judgment should be stricken out, and in place of them the following inserted :

“ Second. That the defendants above named be, and they hereby are, jointly and severally, restrained and enjoined from the further maintenance or operation of their elevated railroad in Third avenue in the city of New York, in front of plaintiff’s premises, which are more particularly described in the complaint herein, unless within a reasonable time, to wit, six months from notice of entry of judgment herein as modified and affirmed by the general term of this court, the defendants cause the plaintiff’s easements in Third avenue appurtenant to said premises and which have been taken or interfered with by the defendants for the purpose of their elevated road, to be condemned and taken for such railroad purposes in the manner prescribed bylaw, orto be acquired by agreement.

Third. No injunction shall issue restraining the defendants from maintaining or operating their said elevated railroad in case the defendants within six months from notice of entry of judgment herein as modified and affirmed by the general term of this court, acquire title to the easements taken or interfered with as mentioned above in either of the modes specified in the preceding subdivision.”

As thus modified the judgment appealed from should be affirmed, without costs to either party on this appeal.

McAdam and Gildersleeve, JJ., concurred.  