
    Mary B. Delafield, Resp’t, v. The Manhattan Railway Co. et al., App’lts.
    
      (NewYork Common Pleas, General Term,
    
    
      Filed November 4, 1891.)
    
    1. Railboad—Elevated—Evidence.
    In an action to restrain the operation of an elevated railroad and for damages, evidence of an expert as to the amount of the injury to plaintifE's premises caused by the railroad is incompetent, and its admission adequate ground for reversal.
    
      % Same.
    The opinion of an expert as to whether the street would have been better and with higher values if the railroad had never come there is incompetent, because purely conjectural and speculative.
    Action in equity to enjoin the maintenance and operation of defendant’s railway. Plaintiff had judgment of injunction.
    
      Peckham & Tyler, for resp’t; Edward C. James, for app’lts.
   Pryor, J.

To prove the fact and the amount of damage to her property from defendants’ railway, plaintiff called one Water-low as a real estate expert, and propounded to him these inquiries: “ How many thousand dollars do you say that elevated railroad, in respect to injuries to light and noise, have damaged that lot?” Defendants objected to the question as “ incompetent and improper thereupon the court modified it, and to the question as modified defendants objected on the same grounds. The court overruled the objection; and the witness, answering the question as first propounded, said, “To the par ” (fee?) “value of the lot it would be about 20 to 25 per cent.” Again, “ Please state your estimate of the injury from the elevated railroad to the light and also to the building on the lot, in dollars and cents, confining your estimate to the injuries from the road in respect of noise and the impairment of light ?” To this question defendants objected on the grounds above stated, and also on the ground that “ it is incompetent for the witness to give his opinion upon the amount of damagebut the objection was overruled, exception duly taken, and the witness answered, “ Taking all the elements of the railroad together, I cannot suggest light and noise alone, I should say, dirt and cinders and gases, the depreciation of the rental value would be about 38-J- per cent, in combination.” Upon the opinion in Me Gay's case, herewith decided, this evidence was clearly incompetent and its admission adequate ground of reversal.

Again, to the same witness, plaintiff propounded this inquiry: “ Have you formed an opinion as to whether Sixth avenue, near Twenty-third street, would have been a better street with higher values, supposing that elevated railroad had never come there, or the reverse?” To this question defendants objected, that it was “ incompetent, irrelevant and immaterial; also, as speculative and conjectural, and not a proper subject for opinion.” The objection was overruled, defendants duly excepted, and the witness answered, “ It would have improved materially for the better without the elevated road in all ways,” etc. Upon the opinion in Wallach v. R. R. Co., herewith decided, and the adjudication in Roberts' case and Gray's case, this evidence was incompetent because purely conjectural and speculative, and its admission sufficient ground for reversal.

Waiving consideration of other points presented by appellants, for the errors specified the judgment must be reversed and a new ’trial had, costs to abide the event.

Daly, Ch. J., and Bischoff, J., concur.  