
    Augusta Ottenot as Executrix, etc., v. The New York, Lackawanna and Western Railroad Company.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed December 3, 1888.)
    
    1. Right of way—Action fob damages fob obstbtjction to.
    An owner of real estate fronting on a street may maintain an action for an injury to liis property by the construction of an embankment in the street, which was of a permanent character, destroying his right of way in the street and of access to his property from the street.
    
      2. Same— Obstruction of a bight of way—Measube of damages.
    The proper measure of damages is the depreciation of plaintiff’s property by reason of the construction of the embankment.
    3. Same—Evidence—"What is competent.
    A witness may not give his opinion to the effect of such an embankment and of the extent of the damage done, because that is for the determination of the jury, but he may state the value of the property before and after the construction of the embankment, and also what elements were taken into account by him in fixing the amount of the depreciation.
    The case of Reming v. The N. Y., L. and W R. R. Co., 1 State Rep., 734, explained and distinguished.
    
      Day & Parker, for pl’ff; Rogers, Locke & Milburn, for deft.
   Titus, J.

This is an appeal from a judgment entered on a verdict of the jury in favor of the plaintiff for damages sustained by the plaintiff’s testator to his lands and property on Commercial street in this city, occasioned by the construction of an embankment along the center of Commercial street.

Nearly all of the questions raised by this appeal have been passed upon by this court in Reming v. The N. Y. L. and W. R. Co. (1 N. Y. State Rep., 734). It was held in that case, where the facts are nearly identical, that the plaintiff could maintain an action for an injury to his property, as the embankment was of a permanent character, amounting to a destruction of the plaintiff’s right of way in the street and of access to his property from the street, and that the proper measure of damages was the depreciation of plaintiff’s property by reason of the construction of the embankment.

These questions must be regarded as settled, so far as this court is concerned, until the court of appeals' shall more authoritatively settle the law.

After the plaintiff’s witnesses had testified to the value of the property before and after the construction of the embankment, they were asked, the questions put to different witnesses being somewhat varied in form : What is the reduction in value due to ?” To what do you attribute the depreciation in the value of the property ?” but involving substantially the same question as to admissibility.

It is claimed by the defendant’s counsel that the questions called for a conclusion of the witness. I think it was proper for the witness to state the facts on which he bases Iris opinion of the valuation of the property, and if he has done no more, no error was committed. Clark v. Baird, 5 Seld., 191.

Both forms of questions put to different witnesses were for but one purpose, and elicited the same reply. The evident purpose was to ascertain from the witness what facts he took into .consideration in estimating the value of the property. I think it was competent for the jury to understand upon what the witness predicated his opinion that the property had depreciated in value. The decision in Ranch v. N. Y. L. and W. R’y Co., reported in 17 State Rep., 401, is not an authority for defendant’s position. In that case the question was asked the witness ‘ ‘ What has been the effect of the construction of the embankment in Commercial street and Water street, upon the plaintiff’s premises ?” The court held in substance that, the witness could not give his opinion of the effect of the embankment, that being for the determination of the jury, but might state the value of the property if he knew, but it does not hold that he may not state what elements were taken into'account by him in fixing the amount of depreciation.

The judgment should be affirmed with costs.

Hatch, J.

I concur in the disposition made in this case.

In Ranch v. The New York, L. and W. R’y Co. (17 N. Y. State Rep., 401), relied upon by the defendant, this court held evidence improper which called upon the witness to determine the extent of damage done by the embankment, which is the subject of complaint here. In the present case, so far as that question is concerned, no error was committed, as the witnesses exactly complied with the rule. All the facts upon which the witnesses based their conclusion were here given, and when they were asked what in their opinion produced the depreciation in the value of the property, the jury then had before them every element upon which their opinion was based; for this reason I think no error was committed. Moyer v. N. Y. C. R. R. Co., 98 N. Y., 645; Avery v. N. Y. C. R. R. Co., 17 N. Y. State Rep., 417; Miller v. Long Island R. Co., 9 Hun, 194.

Beckwith, Ch. J., not sitting.  