
    Emma Gutman, Resp’t, v. New York Elevated Railroad Company et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 18, 1895.)
    
    Evidence—Elevated railroads.
    _ A judgment for plaintiff, ip an action for injuries caused by the operation of an elevated railroad, will be reversed where the evidence was admitted as to damages which plaintiff was not entitled to recover.
    Appeal from a judgment in favor of plaintiff.
    Sidney Smith, for app’lts; W. G. Peckham, for resp’t.
   PER CURIAM.

It seems to be conceded by the respondent that evidence, and, upon an examination of the record, a considerable amount thereof, was admitted in this action for the purpose of proving damage, of a character which was condemned by the court of appeals in the case of Jamieson v. Railway Co. (recently decided), 41 N. E. 693. It is impossible for us to say that such evidence did not influence the referee, or that he would have come to the same conclusion had it not been presented before him for consideration. It may be true that the evidence in question was of a character such as has been presented in various of these cases which have been affirmed by the court of appeals. But that court seems in the case last decided to have finally come to the conclusion that it is necessary to enforce the rules of evidence which commonly obtain, even in an elevated railroad case, in this city; and we see no reason for dissenting from this conclusion.

The case at bar as ,already stated, is clearly within the rule laid down in the Jamieson Case; and the judgment must therefore be reversed, and a new trial ordered before another referee, to be appointed by this court, with costs to the appellants to abide the event.  