
    Susan Jefferson, Jr., et al., Resp’ts, v. The New York Elevated Railroad Company et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed April 26, 1892.)
    
    Railroad—Elevated—Evidence op damage to pee—Expert.
    Opinions of expert witnesses as to what premises abutting on an elevated railroad would have been worth if they were unafEected by the road and its operation are incompetent.
    Appeal from a judgment of the general term of the supreme court, in the first judicial department, affirming a judgment entered upon the decision of the court after a trial at special term
    Action to enjoin the defendants from maintaining and opw' an elevated railway in front of the premises belonging to the plaintiffs, known as No. 934 Ninth avenue, to recover the damages already sustained by reason of the construction and operation of said railway, and, in case the defendants are permitted to continue to operate the same, to compel them to pay the permanent damages sustained by the plaintiffs in consequence thereof.
    The judgment as entered awarded the sum of $2,000 for damages already sustained, with a permanent injunction against the further operation of the railroad; provided the defendants should not within a specified time tender to the plaintiffs for execution a conveyance of the “ easements ” found to have been taken, and upon the execution and delivery of the same pay them the sum of $4,000, besides interest.
    The premises in question are situated on the easterly side of Ninth avenue about the middle of the block between' Fifty-ninth and Sixtieth streets, and consist of a five-story apartment house, built of brick and brown stone. On the corner of Fifty-ninth stre'et is a station, but no part thereof is in front of the-plaintiffs’ property. There are no. columns in front of the house, and the nearest rail is thirty-six feet and six inches distant therefrom. The avenue is about 120 feet wide, and the elevated structure, which is fifteen and one-half feet high at its lowest part, occupies a space thirty-eight feet and four inches wide. The railway was constructed in 1878, and the house was erected two years thereafter. Prior to the building of the road, this lot and the neighboring lands were vacant.
    The lot cost $5,500 in 1864 or 1865, and the original cost of the building was $18,000, but it was subsequently altered and extended at an expense of $12,000. The two lower floors are adapted to store purposes and each of the other floors is divided into two suites of six rooms each. Only one room of each suite fronts toward the railway and the rest of the rooms are lighted wholly from the rear, sides and an air shaft The plaintiffs are now the sole owners of the property, but prior to October 17, 1885, they owned it in common with two other persons, whose claim for damages they acquired by assignment before the commencement of this action.
    Since the railroad was built there has been a decided increase in the value of real estate in the district where the premises in question are situated. Evidence was given tending to show that the present value of plaintiffs’ lot, without the building, is $17,000.
    
      ySamuel Blythe Rogers, for app’lts; Gliarles G. Bennett, for resp’ts.
    
      
       Reversing 33 St. Rep., 916.
    
   Vann, J.

Upon the trial of this action one Cody was called as a witness for the plaintiffs, and after testifying to his qualifications as an expert in estimating the value of real estate, and stating his judgment as to the rental value of the premises in question, just before certain alterations had been made therein, he was asked the following questions: “What, in your judgwould have been the fair rental value of those premises if they had not -been affected by the construction and operation of the elevated road ? What, in your judgment, would be the fair selling fee value of those same premises if they were not affected by this road and its operation? What would the fair .rental value be if they were unaffected by this road and its operation ? ” To each of these questions the defendants objected “ as incompetent, irrelevant, immaterial and conjectural; as not within the competency of this witness, and not within the competency of any witness; and as including all the damages due to the railroad and not all the damages due to the taking of the plaintiffs’ easement.” The objections were overruled and the defendants excepted. To the first question the witness answered: “It would be worth four or five dollars a month more.” He then added that in his judgment the present fee value of the premises, situated as they are, with the road in operation, is about $40,000.

In answer to the second question he said : “ $45,000. In my judgment the fair rental value of those premises as they are now to-day is, the store and basement, about $1,200 a year; the next floor, about $600 a year; the third floor, about $700; the fourth floor, $650, and the top floor $600.” His answer to the third question was as follows: “ The store and basement would be worth $1,500 a year; the next floor would be worth $700 a year; the next floor $800 a year and the fourth floor $720, $60 a month. The top floor would be worth as much as $720.”

Another expert witness for the plaintiffs was asked for his judgment as to the fee value of the premises if they were not affected by the railway and its operation and, subject to the same objection, he said from forty-seven to forty-eight thousand dollars. When asked as to the rental value, if the premises were unaffected by the railway and its operation, he answered, subject to the same objection, that it would bring at least seven or eight hundred dollars more.

In actions brought by abutting owners to restrain these defendants from operating or maintaining their elevated railroad, it has been held by this court that the opinion of an expert as to what would have been the value of the property affected, if the railway had not been built, is incompetent. Roberts case, 128 N. Y., 455; 40 St. Rep., 454; Doyle's case, 128 N. Y., 488; 40 St. Rep., 474; Gray case, 128 N. Y., 499, 508; 40 St. Rep., 478; Kernochan case, 130 N. Y., 651; S. C., 41 St. Rep., 266.

In this case professed experts were allowed to state what the plaintiff’s premises would be worth if they were not affected by the road and its operation, which is equivalent to stating the value of the property if the road had not been built The questions differ in form only, not in substance, from those recently adjudged incompetent- The questions and answers bring the same ideas before the mind in this case, except as to amounts, as in the cases cited.

We think that the opinions of witnesses as to what the premises in question would have been worth, if they were unaffected by the road and its operation, were incompetent under the rule established by this court in relation to the subject

The learned counsel for the plaintiffs criticizes the objections made by the defendants to this evidence as insufficient, because they do not suggest that the subject to which the questions relate is not one upon which expert evidence is admissible. Reference is made to the McGean case, 117 N. Y., 219; 27 St. Rep., 337, where the objection was based in part upon the ground that the witness was not competent to give an opinion and the court suggested that this might imply that opinions were competent on the subject. In this case, however, no such implication can arise, because the point was distinctly made in the objection that the question was not within the competency of this witness and not within the competency of any witness ;” just as in the Doyle case, supra, it was objected lhat 11 the question was not within the competency of this expert, or any expert.”' In both cases the question called for an opinion only and the objection challenged the competency of any witness to give an opinion upon the subject to which the- question related. In the Roberts case, supra, the corresponding question was objected to as hypothetical and incompetent, and in the Doyh case, supra, as hypothetical, speculative and incompetent.

In the Gray case, supra (p. 508), a somewhat similar question was objected to “ as not within the issue; as hypothetical and conjectural * * * and as incompetent, irrelevant and immaterial.” In the case now before us the questions were objected to on similar grounds, and to quite an extent on grounds identical with those in the authorities cited, and we think that the objections were sufficient to raise the point that was decided in those cases and to make them binding upon us in the decision of this. Conjecture and speculation are used in two of those cases as synonymous terms. Roberts case, 474; Gray case, 509.

It is further insisted that there was enough evidence, other than that objected to, to support the judgment and hence that the defendants have not been harmed.

Even if the testimony that was not objected to was sufficient to justify the result reached by the learned trial judge, it certainly would not compel it. There was evidence that would have justified a result more favorable to the defendants. As was said by the court in Foote v. Beecher, 78 N. Y., 155, 158, “ An error in receiving incompetent evidence, if properly excepted to, can only be disregarded when it can be seen that it did no harm. If the evidence is slight or irrelevant, or if without it the fact is conclusively established by other evidence, it may be disregarded because it could not have injured the other party.”

Even if the result would probably have been the same without the objectionable evidence as with it, as there was testimony that would have warranted a different conclusion, we - cannot say what weight the opinions erroneously received may have had. Starbird v. Barrons, 43 N. Y., 200.

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

All concur.  