
    Maurice J. Sternberger et al., Resp’ts, v. The Metropolitan Elevated Railway Co. et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 5, 1892.)
    
    1. Railroad—Elevated—Evidence.
    In an action against an elevated railroad for rental losses from 1885 to-1888, the court excluded evidence as to liow many buildings were erected in the street in question from 1878 to the present time. Held, no error; that proof of rental loss or of the prosperity of the street between 1888 and the time of the trial was immaterial and inadmissible.
    
      % Same—Leading question.
    A witness who testified to the course of rents of a building having, on cross-examination, stated that it was vacant for a time and the rents varied, was asked, it he had not, during that time, used his best endeavors to get the best rent possible, which was excluded under objection to it as incompetent. Held no error; that it was not best evidence on that subject, and the question was flagrantly leading.
    Appeal from judgment on verdict, and from order denying new trial. Action at law for rental losses to plaintiffs’ premises' from the construction and operation of defendants’ elevated railway. The claim of recovery is from April 11, 1885, to April 11, 1888.
    
      Julien T. Davies and Brainard Tolles, for appl’ts; E. W. Tyler and Henry Schmidt, for resp’ts.
   Pryor, J.|

The appellants concede that “the record presents a sharp conflict of evidence on the question of the amount of damages and this being so, we are not authorized to set aside the verdict on the ground that it is excessive. Betjeman v. E. R. R. Co., 48 St. Rep., 721. Still the appellants contend that the judgment is avoided by error in the exclusion of evidence.

1. This question was propounded to a witness by the defendants: “From 1878 to the present time, how many new buildings were erected in South Fifth street?” the locality of plaintiff’s premises. On objection that the proposed evidence was immaterial, irrelevant and incompetent, it was excluded, and defendants excepted.

The'aetion was for the recovery of rental loss between 1885 and 1888. Proof of rental loss between 1888 and the time of the trial, 1892, would have been proof of a fact not in issue, and hence inadmissible.

The argument of appellants is, however, that the evidence was relevant and competent to show the effect of the railroad on the prosperity of the street. But the prosperity of the street between 1888 and 1892 was not in controversy, and still the evidence was irrelevant

Appellants assert again, that since between 1888 and 1892 the railroad was operating under the same conditions as between 1885 and 1888, proof of its effect on the prosperity of the street during the former period was evidence of its effect on the prosperity of the street during the latter period. The effect of the railroad between 1885 and 1888 was as capable of direct proof as between 1888 and 1892, and to allow evidence as to the latter period was to rely upon a presumption too far fetched and feeble for the purposes of forensic demonstration.

Besides, direct evidence was in fact given by the defendants as to the effect of the railroad on the prosperity of the street during the period in litigation.

It is the primary and most prevalent law of evidence, that it be the best of which the case in its nature is susceptible. 1 Green-leaf, § 82.

Beverse the contention of the parties: would the defendants have allowed proof of the decadence of the street since the commencement of the action as evidence of plaintiffs’ damages at an anterior period ?

The evidence tendered was not only too weak to support a rational inference as to the fact in dispute, but was fraught with mischievous consequences to the cause on trial. The enhanced value of plaintiffs’ property after the action might have been credited by the jury in reduction of the damages they sustained before and for which they sue.

Defendants insist that the plaintiffs had been permitted to give evidence of improvements in Greene street since the period in controversy; and that so the court denied them the benefit of the rule accorded to the plaintiffs. The record does not support the contention. On the contrary, it is quite obvious that the evidence of improvements in Greene street was restricted to the period in litigation, and disclosed no fací since 1888, the time of the sale of the property by plaintiffs.

2. The defendants proved the course of rents of Nos. 520 and 522 Broadway. On cross-examination the plaintiffs showed that a portion of those premises had been vacant; that the rents varied and many changes of tenants occurred from year to year. Whereupon, on re-direct, defendants inquired of the witness: “ Have you not, during all this time, used your best endeavors to get the best rent possible?” On objection to the question as irrelevant, immaterial and incompetent, it was disallowed; to which defendants excepted.

If admissible to show that the rents realized were the best possible, the legitimate method of proving the fact was by exhibiting what the witness did to secure the best rents, and not by an opinion or conclusion as to the character of his efforts to that end.

In any event, the question was flagrantly leading, and so inadmissible.

Defendants argue, however, on the authority of Tooley v. Bacon, 70 N. Y., 37, that the irregularity is not available on this appeal. But here the alleged ground of objection was the incompetency of the question ; critically the appropriate objection to a leading interrogatory.

Detecting no error in the record, we must affirm the judgment.

Judgment affirmed, with costs.

Bookstaver and Bischoff, JJ:, concur.  