
    Susan Jefferson, Jr., et al., Resp’ts, v. The New York Elevated R. R. Co. et al., Appl’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 24, 1890.)
    
    1. Railroads—Elevated—Joinder of actions—Waiver.
    An objection to the joinder of a cause of action for damages caused by the erection of an elevated railroad in front of plaintiff's premises with one to restrain its future maintenance is waived if not taken by demurrer.
    2. Same—Jury trial not proper.
    Such action is one in equity, and a refusal to send it to a jury for trial is proper.
    3. Same—Evidence.
    There is no error in allowing real estate brokers to give their opinion as to the decrease in value of the promises because of the existence and operation of the road. Even if such evidence is considered to include all damages due to the road, and not simply those due to the taking of plaintiff’s easements, it is proper to admit it in .the absence of proof that defendant had a legal right to construct or maintain its road.
    4. Same.
    A failure to find that the railroad has been a benefit to plaintiff’s premises is not prejudicial error, in the absence of proof of the value of such ■ benefit.
    Appeal from judgment recovered on trial before the special term.
    
      Brainerd Tolies, for app’lts; Charles Gibson Bennett, for resp’ts.
   Daniels, J.

The plaintiffs have recovered judgment enjoining and restraining the defendants, after the expiration of sixty days, from maintaining or using their elevated railway and structure in front of the plaintiffs’ premises, on the easterly side of Hinth avenue, seventy-five feet and five inches southerly from Sixtieth street, subject to the right of the defendants to terminate or avoid the restraint by tendering within fifty days to the plaintiffs for execution by them a deed conveying to the defendants the easements found to have been appropriated by them in front of such premises, and at the same time paying the plaintiffs the sum of $4,000, with interest thereon from the date of the judgment. The judgment also awarded to the plaintiffs the sum of $2,000 for the damages sustained by them, and by them and two other persons who had previously been tenants in common with them of these premises, by the taking and using by the defendants of the easements of light and air appertaining to the premises, and provided for the collection of such damages by execution. The other tenants in common had assigned their claim for damages, and had conveyed their individual shares to the plaintiffs. The assignment set out in the case has not been made to include all the plaintiffs as assignees. But its failure to do so has probably been caused by a defect in printing it, for upon the trial, and in the briefs of the counsel and the decision of the court, it has been uniformly referred to as an assignment of these damages to the plaintiffs. It may therefore he assumed to have been in form to all the plaintiffs instead of the two mentioned in the case.

The defendants have objected to this part of the recovery as unauthorized in an action brought, as this mainly was, to restrain and prevent the future maintenance and use of the elevated railroad in front of the plaintiff’s premises'. But if they could have taken advantage of this as a misjoinder of causes of action, that should have been done by demurrer, as it appeared on the face of the complaint. That was not done, and by the express provision of the Code of Civil Procedure, the omission waived the objection. At the opening of the trial the defendant moved that the action should be sent to the calendar of cases to be tried by a jury. But that was denied, and the defendants’ counsel excepted. This motion was addressed to the whole case, and not merely to that part of it which included the damages allowed. The court was asked to send the entire action to be tried by a jury. But that it could not lawfully do on such amotion, for its principal object was to restrain and enjoin the defendants from maintaining and operating the railroad, and so far it was certainly an action in equity. The objection taken to this disposition of the -motion has, therefore, no legal support

Objections were also taken to the competency of persons to testify concerning the decrease in the value of the premises because of the existence and operation of the railroad, and to the evidence expected to be elicited by the answers. The court allowed the witnesses to answer, and the defendants’ counsel excepted. But as the witnesses were shown to have been engaged as brokers in the real estate business, and were acquainted with property in the vicinity of these premises, and with the premises themselves, and their rental value, also, there was no error in permitting them to express their judgment on these subjects. It is the only manner in which such facts can be proven, and no authority would have justified the exclusion of the answers because of the incompetency of the witnesses. The testimony proposed to be obtained was also competent, relevant and material.

The further objection that the question included all the damages due to the railroad, and not the damages due to taking the plaintiff’s easements, has plausible, though not real ground of support For it is evident from the entire evidence of these witnesses, that they understood that they were to give their judgment as to the reduction in the value of the premises by reason of the taking of these easements, and their contamination from the smoke and cinders carried into them by the use that was made of this structure. And that was the understanding of the court of the effect of this evidence, for the decision and the judgment have both been restricted to these subjects as the basis of relief. But if the witnesses had understood the questions in the broader sense mentioned by the defendants’ counsel, there was no error in receiving their answers, for at that time it had not been shown that the defendants had any legal right to construct or maintain the railroad in this part of Ninth avenue. And in the absence of that proof the plaintiffs were entitled to redress for maintaining the railroad as an unlawful' structure in this public street.

Eeliance has also been placed upon the refusal of the court to find that the maintenance and operation of the station and railway have been a benefit to these premises. There was evidence given on the part of the defendants that the property in that part of the city had been improved in value since the railroad was built and put in operation. But no assignable benefit to this particular property from that cause was proved. And the plaintiffs’ witnesses gave their judgment of the difference in value with the entire situation before them, and the court acted upon that in the decision which was made ; no advantage could have been secured to the defendants if the court had found this fact in their favor. It would not have secured to them the right to have the amounts allowed reduced to any extent. And the error, if such it should be held to be, was no source of injustice to the defendants. If they had intended to claim any benefit from the evidence, it should have gone farther and shown to what extent the railroad had enhanced the value of this property. For without this additional evidence, even this finding would have justified no allowance or reduction whatever to the defendants on the fact of such benefit.

The fact that the existence of the railway and the station, which was immediately south of the south line of the premises, rendered them more accessible than they otherwise would have been, would have been equally without benefit to the defendants if it had been found as requested. It would not have reduced the difference between the value of the premises from the appropriation of these easements, nor the amounts included in the judgment, to any appreciable extent, nor could the other finding refused, that the cause of action which had come to the plaintiffs by the assignment could not be enforced in this equity action. The damages claimed under that assignment seem to have been so connected with the subject of the action as to mate them the proper subject of adjustment in this suit But if that should be held otherwise, _ the judgment would not be affected, for the defendants, by not raising this objection in the time and manner assigned for that object, have deprived themselves of the right to raise it now. The case was a meritorious one, and there is no legal cause for interfering with the disposition made of it at the trial. The judgment should be affirmed, with costs.

Brady, J., concurs; Van Brunt, P. J., concurs in the result «dy.  