
    The Sixth Avenue Railroad Company, Resp’t, v. The Metropolitan Elevated Railway Company et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed June 20, 1893.)
    
    1. Railboads—Elevated—Damage to bee.
    Although it is error for the court to refuse to find the fact that the value of the easements taken by the defendants when considered alone was nominal, or that the damage, if any, sustained by the plaintiff was only consequential, yet where the record shows beyond any fair doubt that the true rule of damages was adopted by the court, and that in arriving at the amount of the award to be paid it took into consideration the benefits, if any, arising to the land because of the railroad, and gave judgment accordingly, such judgment will not be reversed because of such erroneous refusal to find.
    2. Same.
    UTo compensation or damage can be awarded for vibration or noise caused by th'e railroad.
    
      3. Same.
    The amount oí damage sustained by the abutting owner, or the possible value of property, if the railroad were not there, is not the subject of expert evidence.
    4. Same.
    Where the proper rule of damages was followed bythe court, the refusal by it to state, as a conclusion of law, that in order to recover beyond a nominal sum for the taking of the easements, the plaintiff must establish, by a preponderance of proof, that it has suffered consequential damages from the taking of the easements by defendants, is not error for which a new trial should be granted.
    Appeal from, judgment of the supreme court, general term, first department, affirming judgment of special term in favor of plaintiff.
    
      Edward C. James, for app’lts; George Zabriskie, for resp’t.
    
      
      
         Affirming 46 St. Rep., 964.
    
   Peckham, J.

The questions in this case relate to the damages to the fee of the property owned by the plaintiff herein.

The court refused to find the fact that the value of the easements taken by the defendants when considered alone was nominal only, or that the damage, if any, sustained by the plaintiff, was only consequential. In the abstract this was error, and we have so held. Whenever it has appeared that the court in awarding damages was guided by an erroneous rule founded upon such refusals, we have always reversed. And if the record left the matter in doubt and erroneous findings or conclusions of law appeared therein, we have also always reversed the judgment. We have done so because when an erroneous ruling was made which might be material, we would reverse unless it appeared that no injury came to the defendant by reason of the erroneous finding or refusal to find.

We intend to adhere strictly to the, rule for the award of damages adopted in the Newman and in the Bohm cases, 118 N. Y., 618 ; 30 St. Rep., 36, and 129 N. Y., 576 ; 42 St. Rep., 247.

But when the record shows that the error in the finding as to the value of the easements or as to the nature of the damages sustained was only of an abstract nature, or in other words, that it consisted of a merely erroneous description of the injury sustained, and it also appears that the correct rule for the ascertainment of damages was in reality adopted, it would be unjust to reverse a judgment on any such fanciful ground. In this case, notwithstanding the abstract error in refusing to find as a fact that the value of the easements taken was only nominal when considered alone, and that the damages to be recovered, if any, were consequential only, the record shows beyond any fair doubt that the true rule of damages was adopted by the court. When the trial court speaks of the value of the easements or the property taken by the defendant, it is evident from the conclusions of law found by the learned judge that this language was used to express the idea of damages sustained by the appurtenant land on account of the taking of these easements after a consideration of all the advantages, if any, arising from the presence of the railroad in the avenue.

The court had the decision in the Newman case before it at the time it made the findings in this case, and there is no evidence that the learned trial judge had the least reluctance to follow that decision in its essential and material features. Whether he called the easements of nominal value only, or refused so to designate them, is not of the least consequence, so long as the case shows that in arriving at the amount of the award to be paid the learned judge took into consideration the benefits, if any, arising to the land because of the railroad' and gave judgment accordingly. This the court did in the case before us.

Second. As to the exception to the evidence of noise and vibration caused by the railroad, if the fact had been taken into consideration in fixing the amount of damages to the fee it would, of course, have been error. It is, however, clear from the decision that the compensation awarded was only for the injury to the easements of light, air and access.

It is these easements only which are taken by the railroad, and it is only for the injury consequent upon their taking that a recovery can be had. A careful perusal of the decision convinces us that no compensation or damage was awarded for vibration or noise.

Third. We do not think that any error for which this judgment should be reversed occurred in the various rulings of the court upon the matters of expert evidence. The expert evidence which has been condemned has been that which related to the very fact in issue, viz.: the amount of damages which the party has sustained. It has been held improper to show by the expert his opinion of what would have been the value of the property if the railroad had not been built. That, of course, is pure conjecture or speculation. All the facts necessary to enable anyone to guess upon that proposition can be stated by the expert. All the facts upon which he is enabled to make up his own opinion might probably be stated for the information of the court or jury, but the express fact to be decided by the tribunal itself, viz., the amount of damage sustained by the plaintiff or the possible value of property if the railroad were not there, is not the subject of expert opinion. Roberts case, 128 N. Y., 455; 40 St. Rep., 454; Doyle's case, 128 N. Y., 488; 40 St. Rep., 474; Gray's ease, 128 N. Y., 499; 40 St. Rep., 478. The questions put to the witnesses Waterlow and Harnett were not of that character. The objections to their evidence are such as a cross-examination would obviate, which would bring out the grounds upon which the witnesses based their opinions as to the alleged existing values of property and as to the course of rentals.

Fourth. The refusal of the court to state as a conclusion of law that in order to recover beyond a nominal sum for the taking of the easements the plaintiff must establish by a preponderance of proof that it has suffered consequential damages from the taking of the easements by defendants, was not error for which a new trial should be granted. It is, as has already been stated, apparent from the whole record that a proper rule of damages was followed by the court, and the refusal of this request to call them consequential damages was but a reiteration of the views on that part of the case already given by the court. That it was necessary for the plaintiff to prove its case by a preponderance of evidence is not a matter of doubt, and the trial court nowhere held the contrary.

Fifth. The limitation of the number of experts who should be called was matter of fair discretion with the trial court, and there is not the slightest trace in '-his record of any abuse of that discretion.

After a careful consideration of all the questions in the case we think the judgment should be affirmed, with -costs.

All concur.  