
    EDITH K. ROOSEVELT, and Another, Respondents, v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.
    
      Action for injunction and damages against defendants for constructing and operating its railroad in front of plaintiffs' premises—Objections to opinion of real estate expert, what should be the form of same to be covered by the McGean Case.
    
    The following questions were put to a real estate expert witness on the trial; “What, in your opinion, would, be the rental value of those premises, No. 97 Pearl street, to-day, if there were no elevated railroad in front of them ; and what, in your opinion, would be the value of those premises if .there were no elevated railroad in front of them ? ” These questions were objected to on the grounds that they were hypothetical; that the witness was not competent to give an opinion, and also that they were immaterial and incompetent; and the objections were overruled by the court, and counsel for defendants excepted; and the answers of the witness were taken.
    
      Held, on appeal, that prior to the decision in the McGean Case, in the court of appeals, it was held under many decisions that such questions were admissible, and that the opinion of a witness, who has seen the premises in question and is acquainted with similar property and things, is not incompetent for submission to a court or jury. In the McGean Case, the court of appeals held, that objections like those taken in this case to like questions, did not apprise the court that defendants meant to object on the ground that the questions called for what the judge was to determine upon other testimony in the case. The questions in the ease at bar were not objectionable, therefore, on any ground taken at the trial.
    
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided February 6, 1890.
    Appeal by defendants from judgment entered upon the decision at special term.
    
      Davies & Eapallo, for appellants, argued upon the single exception considered by the court, as follows :—
    The learned trial judge erred in admitting as evidence the opinions of Nelson S. Flock as to what would have been the fee and rental value of the premises in question without the elevated railroad in front thereof. The witness was asked the question : “ What in your opinion would be the rental value of those premises No. 97 Pearl street to-day, if there were no elevated railroad in front thereof ? Counsel for defendants objected to the question as hypothetical, and also on the ground that the witness is not competent to give an opinion ; and also objected to the question as immaterial and incompetent. The court overruled the objection and counsel for defendants duly excepted.” And again the witness was asked the question—“ What in your opinion would be the value of those premises if there were no elevated railroad in front of them ? Objected to as hypothetical, that the witness is not competent to give an opinion, also as immaterial and irrelevant. Objection overruled. Exception taken.”
    We submit that the testimony excepted to was incompetent for the following reasons : (1) It involved the very question of damages to be determined by the trial judge. Van Deusen v. Young, 29 N. Y. 9 ; Teerpenning v. Corn. Exchange Ins. Co., 43 Ib. 279 ; Giles v. O’Toole, 4 Barb. 281; Norman v. Wells, 17 Wend. 136 ; Thompson v. Penn. R. R. Co. 15 Atl. Rep. 833 ; Crane v. Northfield, 33 Vt. 124 : Railway Co. v. Gardiner, 45 Ohio St. 309. (2) It was a question upon which an intelligent judgment could be had without resort to such opinions. Drunker v. Manhattan R. Co., 106 N .Y. 157 ; Ferguson v. Hubbell, 97 Ib. 514 ; Reed v. McConnell, 101 Ib. 270; Wakeman v. Wheeler & W. Mfg. Co., 101 Ib. 205. (3) It was a matter of mere speculation and conjecture, such, as is not involved in any science, art, trade or occupation known to mankind. Ferguson v. Hubbell, 97 N. Y. 514 ; Wesson v. Washburn Iron Co., 13 Allen, 95. In view of these authorities we submit that the opinions of witnesses upon this point were not competent evidence. The evidence being in its essential nature incompetent and adapted to mislead, it is impossible to say to how great an extent the. defendants were injured thereby and within the principle of Foote v. Beecher, 68 N. Y. 155, the error cannot be disregarded. We assume that it has been settled that the evidence in question is plainly inadmissible under the recent decision in the court of appeals in the case of McGean v. Manhattan Railway Company. The sole question in that case is whether the appellant was harmed by the admission of such testimony.
    
      G. Willett Van Nest, for respondents, argued, upon the single exception considered by the court, as follows :—
    I. Flock was competent as an expert. He had great experience in real estate, renting a great deal of downtown property. As has been shown in other cases, if the trial court admits an expert, the appellate court will hold that his qualifications were properly determined by the trial court. Jones v. Tucker, 41 N. H. 546; Nelson v. Sun Mutual, 46 N. Y. 460 ; Swan v. Middlesex, 101 Mass. 177. An expert acquires his information by researches of all kinds. A man whose business it is to rent property can say how much any building should bring in a given neighborhood. The plaintiff was unable to find a real estate expert who had rented property in this neighborhood. All the buildings were rented by the owners or by agents who refused to give up any time to testifying.
    II. It was proper to ask Flock what, in his opinion, would have been the value had there been no road. Clark v. Baird, 9 N. Y. 196 ; Vanderberg v. Boston, 21 W. D. 474 ; Shaw v. City of Charleston, 2 Gray, 107 ; Shattuck v. Stoneham, 6 Allen, 116 ; Swan v. Middlesex, 101 Mass. 178 ; Snow v. Boston & Maine, 65 Me. 230 ; White Deer v. Sassaman, 67 Pa. St. 415 ; Carter v. Thurston, 58 N. H. 104 ; Portland v. Inhabitants, 23 Eng. and Am. Railway Ca. 51 (N. H.); Yost v. Curry, 92 Ind. 469 ; Galena v. Haslam, 73 Ill. 497 ; Keitsburg v. Henry, 79 Ib. 290 ; City of Chicago v, McDonough, 112 Ib. 90 ; Colvill v. St. Paul, 19 Minn. 285 ; Lehmicke v. St. Paul, 19 Ib. 481 ; Sherman v. St Paul, 30 Ib. 227; Snyder v. Western Union, 25 Wisc. 67 ; Worster v. Sugar River, 57 Ib. 314 ; Telephone T. Co. v. Forke, 2 Texas C. C. (Willson), § 365 ; Texas v. Kirby, 44, Ark. 106; Railroad v. Fireman, 24 W. Va. 673 ; Matter of Rochester, 40 Hun. 588 ; Hine v. N. Y. Elevated R. R., 39 Ib. 295 ; Rochester v. Budlong, 10 How. 289. There is a dictum of five lines in a long opinion in McGean v. Manhattan Ry. Co., to the effect that if the question were objected to on the specific ground that the amount of damages could not be proved by the opinion of a witness, it should not be allowed. It was merely a dictum because the judgment was affirmed, the question having been objected to on the ground that it was incompetent, irrelevant and immaterial, and also that it was hypothetical. The dictum should have no authority. The only brief submitted on this point was in behalf of the Manhattan Railway Co. That brief cited all the decisions against the admission of the question, but neither the brief nor the opinion refer in anyway to the authoritative decisions to the effect that the question is admissible. The question must be specifically objected to on the ground that the opinions of witness are not admissible as to the value which the property would have without this structure.
    
      
       The conclusion seems to be, that if the objections had been that the questions called for what the judge was to determine on' the trial upon other testimony in the case, that they should have been sustained and the testimony excluded.—Meptrs.
      
    
   By the Court.—Sedgwick, Ch. J.

This was an action to enjoin the defendants from maintaining and operating their railway in front of plaintiffs, premises and for damages.

The only exceptions to be considered are those taken to the admission of the following questions; “ what in your opinion would be the rental value of those premises, No. 97 Pearl street, to-day, if there were no elevated railroad in front of them? and, what in your opinion would be the value of those premises if there were no elevated railroad in front of them ? ”

Before the decision of McGean v. Manhattan Ry. Co. in the court of appeals, it was generally supposed that such questions were admissible under the general rule given by Greenleaf, § 440a, “ as to the marketable condition and value of property, etc., opinions are received. Section 440 gives a pertinent case. A secretary of a fire insurance company accustomed to examine buildings with reference to the insurance of them, and who, as county commissioner, had frequently estimated damages occasioned by the laying out of railroads and highways, has been held competent to testify his opinion as to the effect of laying a railroad within a certain distance of a building upon the value of the rent, etc.”

In Clark v. Baird, 9 N. Y. 183, in an action for false representations, in defendant’s saying that land bought of him by the plaintiff extended to a described distance, it was held, that the testimony was valid, of a witness who swore that the land was worth $1,000 if it extended to the mill-race and trees. The strip taken off would reduce it one-fourth. This testimony had been objected to on the ground that the amount of damage cannot be ascertained by the opinion of the witness. Judge Johnson examined many cases, and among them cases that had maintained that it was a sufficient objection to such testimony, that the thing testified to was a matter that should be determined by the jury or judge. The rule was announced that the opinion of a witness, who has seen the thing in question and is acquainted with similar things, is not incompetent to be submitted to a jury.

Professor Chase in his edition of Stephens’ Dig. Ev. in Yol. 2, p. 102, gives an important list of cases on this subject.

In the case of McGrean (supra), the court of appeals has held that specific objections, like those taken in this case to like questions, did not apprise the court that defendants meant to object, on the ground, that the question called for what the judge was to determine upon the other testimony in the case. The objections taken on the trial in the case at bar were, that the questions called for immaterial and incompetent testimony; that the witness was not competent to give an opinion, and that the question was hypothetical. The questions were not objectionable, therefore, on any ground taken at the trial.

The judgment should be affirmed with costs  