
    Charles C. Taber et al., Resp’ts, v. The New York Elevated R. R. Co., App’lt.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed November 3, 1890.)
    
    1. Railroads—Trespass—Evidence.
    Where one of the defenses to an action for damages caused by the operation of an elevated railway is that plaintiff saw the work of construction going on and never objected or interfered to prevent it, it is not error to admit testimony to show that in building the road defendant put posts in plaintiff’s vaults and that plaintiff protested against its so doing.
    3. Trial—Stipulations—Expert evidence.
    The owner of real estate in the neighborhood of the property described in the complaint, who testifies to facts, is not an expert within the meaning of a stipulation restricting each side to three real estate expert witnesses.
    Appeal from a judgment entered on the verdict of a jury and from art order denying a motion for a new trial.
    Action to recover damages for the maintenance and operation of defendant’s railroad in front of plaintiffs’ property.
    
      Davies & Papallo, for appl’t; John E. Parsons, for resp’ts.
   Truax, J.

The trial judge allowed the plaintiffs to show that when the defendant began to build an elevated railway in front of plaintiffs’ premises it went into the vaults of plaintiffs’ building and put posts there and that the plaintiffs protested against defendant’s employees so doing; and torfchis ruling of the trial judge the defendant excepted. It was not error for the trial judge so to rule. One of the defenses set up by the defendant was that the plaintiffs stood by during the construction of the railroad and saw the work going on and never objected, remonstrated or interfered to prevent it. The testimony above referred to tended to disprove this defense and it was not error to admit it in evidence.

The defendant contends on this appeal that the trial judge erred in admitting the testimony of an additional expert in the face of a stipulation restricting each side to three expert witnesses. The stipulation was “ that the testimony of real estate experts be limited to three witnesses upon behalf of each party.” This stipulation was not violated by the ruling of the court. The witness to whose testimony exception is taken was not an expert. He was an owner of real estate situate in the neighborhood of the property described in the complaint and he testified to facts, something that a real estate expert seldom does.

The questions presented by the other exceptions that were signed before us have been so frequently determined adversely to the defendant by this court that it is not necessary to call attention to them.

Judgment and order affirmed, with costs.

Freedman, J., concurs.  