
    Mary J. O'Dell, Resp't, v. The Metropolitan Elevated Railway Co. et al., App'lts.
    
      (New York Superior Court, General Term,
    
    
      Filed April 3, 1893.)
    
    Railroad —Elevated—Evidence
    Where a witness for the plaintiff in an action against an elevated railroad, who was a former tenant of the building, testifies on cross-examination that the railroad made a big increase in his business, it is error to exclude as immaterial a question as to how much more rent, in his opinion, it was worth on account of the road being there.
    Appeal from a judgment of the equity term.
    
      Sackett & Bennett (Henry W. Sackett, of counsel), for resp't; Davies & Rapallo (R. L. Maynard and Herbert Barry, of counsel), for app'lts.
   Gildersleeve, J.

The judgment awards to plaintiff the sum of $2,931.61, damages and costs, and enjoins the defendants from operating their elevated railroad in front of plaintiff’s premises, unless defendants pay to plaintiff $300, with interest from the entry of the judgment, and stipulate not to use the judgment as a bar to a subsequent action for injuries inflicted after 1890.

The plaintiff’s leasehold estate, under the lease by which she claimed title when she brought suit, expired February 1, 1890, and the renewal was at her option. Therefore, on that date, the plaintiff’s interest, which the action was brought to protect, ceased, it was error to grant an injunction which would be operative after February 1, 1890. This error does not necessarily call for a reversal, as the judgment can be modified by limiting the operation of the injunction to the period covered by the lease. Welsh N. Y. El. R. R. Co., 35 St. Rep., 35.

Under the third point in the brief of the learned counsel for the defendants, our attention is directed to an alleged error in the exclusion of evidence that we believe to be fatal to the validity of the judgment.

John Connors, a former tenant of one of the buildings in question, was called by plaintiff, and, after testifying to some annoyance from, the railroad, stated, on cross-examination, as follows: “ It made a big increase for my business. The railroad helped my business one hundred per cent; that is all. * * * We had a nice business there, and I guess the elevated road helped us a good deal The trade of that place helped me a good deal.”

Q- “ How much rent more, in your opinion, was it worth on account of the road being there? ”

Counsel for plaintiff objected to the question as immaterial. The court sustained the objection, and the defendants’ counsel only excepted.

This ruling cannot be sustained on the ground on which it was actually placed, to wit, immateriality. The form of ■ objection admits the competency of the evidence, and we are not at liberty to consider -any other ground than that of materiality in support of the objection. Ward v. Kilpatrick, 85 N.Y., 416; Matter of Thompson, 127 id., 467; 40 St. Rep., 200; Tooley v. Bacon, 70 N. Y., 37; Marston v. Gould, 69 id., 220; Vietor v. Bauer, 11 St. Rep., 532; Height v. The People, 50 N. Y., 395; Lefever v. Lefever, 30 id., 40; Purdy v. Man. Ry. Co., 36 St. Rep., 47.

Although the question seems to be objectionable on grounds not taken at the trial, its exclusion on the ground of immateriality, the only ground offered in support of the objection, calls for a reversal. Doyle v. Man. El. R. Co., 128 N. Y., 488; 40 St. Rep., 474; Purdy v. Man. El. R. Co., 36 St. Rep., 43; Welsh v. N. Y. El. R. R. Co., 35 id., 35.

Since the trial of this action it has been effectually settled by the decision in the Newman case, 118 N. Y., 618; 30 St. Rep., 36, and many others unnecessary to consider, that evidence of benefits is material and admissible.

Having reached the conclusion that the judgment should be reversed for this assignment of error, it is unnecessary to discuss any of the other questions raised by the appeal.

The judgment should be reversed and a new trial granted, with costs to abide the event.

Dugro, J., concurs.  