
    John Jamieson and John A. Bond, Respondents, v. The New York and Rockaway Beach Railway Company, Appellant.
    
      Negligence—proof that a fire toas caused by a door in the sparh arrester upon an engine being open — evidence of experts as to — impeaching a witness — allowance of interest discretionary with the jury.
    
    Witnesses familiar with the mechanism of a spark arrester, and with the proper mode of its operation, may testify as to whether there is any posihility of the key, fastening the door of the spark arrester in position, falling down in the operation of the engine, if once properly placed in position, and as to whether an engine, having a properly constructed netting, in good order, would throw sparks to a considerable distance.
    Where there is a conflict in the testimony of the fireman and engineer as to whether the door of the spark arrester was found open before or after the fire, it is competent, for the purpose of impeaching the fireman, to prove a statement made "by him on the same subject to a third person.
    Jn an action in which it was sought to prove the value of certain lands and buildings, and an ice machine situated in one of them, witnesses were permitted to include in their estimates what they had been told was the cost of the ice "machine. It appeared, however, by other competent proof what the original •cost of the machine was, and what had been expended thereon for repairs, additions and improvements.
    
      Held, that the evidence as to what the witnesses had been told was not, under the circumstances, prejudicial to the defendant, and that its admission was not such an error as called for the reversal of the judgment.
    In an action brought to recover damages for the destruction of certain premises, belonging to the plaintiff, by a fire alleged to have been caused by sparks and -cinders emitted by one of the defendant’s engines, the engineer of the engine in question testified that he, immediately after the fire, found the door in the sparlc arrester open, and the key furnished for the purpose of fastening such door lying unbroken in the bottom of the smoke box. The effect of the door being open was to permit the free passage of sparks and cinders, and it was not shown how long this condition had existed. There was, however, testimony to the effect that sparks were thrown out by this engine at various times prior to the fire, permitting the inference that the spark arrester had been out of order for a considerable period of time.
    
      Held, that this evidence supported the conclusion that the fire was caused by the negligence of the railroad company.
    In an action in tort to recover unliquidated damages the jury may award interest, but are not compelled to do so, and it is an error for the court to direct them to allow interest.
    Appeal by the defendant, The New York and Rookaway Beach Railway Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the Rh day of May, 1895, ujion the verdict of a jury rendered after a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 1st day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    
      William C. Beecher, for the appellant.
    
      James W. Covert and Henry A. Monfort, for the respondents.
   Brown, P. J.:

The plaintiffs, on July 23, 1893, were the owners of certain real estate with the buildings thereon at Holland’s Station, in the county of Queens, where they carried on business as dealers in ice, coal, wood, hay, etc. There was upon such premises, contained in one of the buildings, an ice machine and j>lant for the manufacture of ice, which, however, had not been in operation for a year prior to the date of destruction of said buildings. On the date aforesaid, about four o’clock in the afternoon, the buildings and machinery and other personal property thereon were destroyed by fire, and it was the plaintiffs’ claim at the trial that such fire was caused by sparks and cinders cast upon the buildings by one of the locomotives of the defendant railroad. The plaintiff recovered a verdict at Circuit for the sum of $29,825, and from the judgment entered thereon the defendant has appealed to this court.

The testimony permitted the conclusion that a locomotive, in charge of Engineer Clin, known as Ho. 11, which was drawing a train going to Rockaway Park, and which passed the plaintiff’s property about four o’clock, emitted the sparks which caused the fire. Clin himself testified that he first saw the fire about seven minutes after he passed the plaintiff’s premises and while his engine was upon the switch at Rockaway Park, and that soon thereafter he examined the spark arrester in the engine to ascertain whether it was his engine that had set the fire or another. The spark arrester in his engine consisted of a wire netting in the forward part of the smoke arch in which there was a door about eighteen inches wide and two and one-half feet long. This door was kept in position by a pin and a split key. When Olin examined his engine he found the door in the netting down and the key in the bottom of the smoke box. The key was not broken, and Olin shut the door and put the key back in its place. The effect of the door in the spark arrester being down was to permit sparks and cinders to pass freely from the smokestack into the open air. How long this door had been down was not shown at the trial, but there was testimony in reference to sparks being thrown out by this engine at various times prior to the fire, which permitted the inference that the spark arrester had been out of order for a considerable period of time, and this evidence, we think, clearly supported the conclusion that the fire was caused by the negligence of the railroad company.

The questions asked by the plaintiffs’ counsel of some of his witnesses, whether there was any danger or possibility of the key which held the door in the spark arrester in position falling down during the operation of the engine, if once put in position, was proper, and the objection thereto was properly overruled. The means of fastening the door was a mechanical contrivance, the effect and operation of which were apparent to any one observing it. The witnesses of whom the question was asked were engineers familiar with the mechanism and having knowledge of the proper mode of its operation, and in answering the question they testified only to a fact' which was within their knowledge and experience. Likewise the objection to the question as to whether sparks would be thrown a, considerable distance if the locomotive had a properly constructed netting, in good order, was properly overruled. Similar questions, were held to be admissible in the case of Brush v. The Long Island Railroad Company (10 App. Div. 535), recently decided in this, court. But in view of the fact that it appeared that the door in the netting was down at the time of the fire, these questions do not appear to be very material, as the view is permitted that the locomotive known as No. 11 had had no adequate means to prevent the escape of cinders and sparks for some considerable period prior to the fire.

The point taken by the appellant’s counsel, that, in giving evidence of injury done to the realty, the plaintiffs were permitted to-go outside of their complaint and bill of particulars, does not appear to be well taken. The allegations of the complaint were that the plaintiffs were the owners of lands adjoining the railroad; that they carried on business in certain buildings thereon, consisting of an ice manufactory, storehouse, stable, hay and feed house and office and tool house; that upon the day of the fire there was in and about said buildings and premises a large quantity of personal property of which a list was thereunto annexed marked Schedule A. This schedule enumerated all the items of the alleged loss, and included within it stables, feed house and other buildings, which were clearly a part of the real estate. The appellant objected to testimony as to the difference between the value of the land and the buildings before the fire and after. The buildings destroyed were clearly a part of the realty, and evidence of the general depreciation of value arising from their destruction was clearly admissible. But in addition to this testimony the plaintiffs proved the value of everything that was claimed to have- been destroyed, including the buildings, and I fail to see how in any respect the defendant was prejudiced by the admission of the testimony objected to.

The competency of some of the witnesses, sworn as to the value of the property destroyed, was also objected to on the ground that in stating the value of the lands with the buildings thereon and the ice machine, they were permitted to include in their estimate what they had been told was the cost of the ice machine. We are of the opinion that the admission of this testimony was not such an error as to call for a reversal of the judgment. The ice machine was not an article which had a market value, and its cost was a matter of estimate and calculation. Mr. Murray, one of the witnesses called by the plaintiff, was not without some knowledge on that subject, as lie was in the business of manufacturing ice, and had received bids and estimates from contractors furnished to him to construct an ice machine on his own property, and had purchased and erected one thereon. But both the witnesses Murray and Holland were competent to testify as to the value of the land and buildings, and their including in the general estimate an amount which they had been informed had been paid for the ice machine was not misleading or prejudicial to the defendant. It appeared by other competent proof what the original cost of the machine was, and what had been expended thereon for repairs, additions and improvements. That is the best testimony that could be produced by the plaintiffs as to the value of this part of the property destroyed, and the fair and proper allowance to be made therefor was, on the evidence, a question for the jury to determine. The verdict was large, but we cannot say that it was excessive. The court instructed the jury to give the value of the buildings and machinery, and that they should make needful allowance for all depreciation, and ascertain the exact value at the time of the tire, and the amount allowed is not so large as to justify our interference therewith.

The appellant also objected to the proof of statement made by one Pearsall, who was a fireman upon engine No. 11 at the time of the fire, as to the door in the spark arrester being down. This proof was not introducedns evidence of the fact stated by the fireman, but to impeach his testimony. Pearsall had been called as a witness by the defendant, and had testified that the time when Olin, the engineer, found the door in the spark arrester down was before the fire, and not after, as Olin had testified. Upon cross-examination he was asked if he had not told Benjamin Ryder that the door was down and had been put up after the fire, and he denied making such statements. Ryder wás thereupon called as a witness by the plaintiffs in rebuttal, and was permitted to testify to a conversation with Pearsall in reference to the door being down. This evidence was admissible to impeach Pearsall, and the objection taken to its reception was properly overruled.

The court, however, instructed the jury that, when they had determined the value of the property destroyed, they should cast the interest thereon from the date of the fire to the date of the trial, and include such interest in their verdict. This instruction was excepted to and was clearly erroneous. The rule applicable to actions to recover in tort for unliquidated damages is that the jury may award interest, but are not compelled to. (Duryee v. Mayor, 96 N. Y. 477; Mansfield v. N. Y. C. & H. R. R. R. Co., 114 id. 331; Brush v. L. I. R. R. Co., supra.)

The trial of the action was on April 24,1895, about one year and nine months after the fire.

The plaintiffs may, therefore, stipulate to modify the judgment by reducing the verdict to $26,750, and if such stipulation is filed within twenty days the judgment so modified will be affirmed, without costs of appeal; otherwise, it must be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event, unless the plaintiffs stipulate within twenty days to reduce the verdict to the sum of $26,750. If such stipulation is filed, the. judgment so modified is affirmed, without costs of appeal.  