
    William P. Douglas, Respondent, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants.
    
      Elevated railroads of New Tor7c—proof of change in neighboring rental and sade values — an objection that it is “not within the issues" is good—an objection to evidence not waived by giving similar evidence in rebuttal.
    
    Where an action is brought by an abutting property owner to restrain the maintenance and operation of an elevated railroad in front of his premises as interfering with his easements, and to recover past damages, it is not permissible, upon the question of damages, to call witnesses, who own property in the vicinity of that involved in the suit, to show what their premises rented for before and after the construction of the elevated railroad; nor is proof as to the sums realized upon sales of other property in the vicinity admissible upon the question of fee damages.
    An objection, made to a question as to rentals of property in the vicinity, that the evidence is “ not within the issues,” is sufficient to raise the question as to its admissibility under this rule.
    A party who has taken a proper objection to evidence, and an exception to its admission, does not lose the right to insist, upon appeal, that the court erred in receiving such evidence in the first instance, because he introduces, after the admission of the evidence objected to, similar evidence upon his own part.
    Appeal by the defendants, The New York Elevated' Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of October, 1895, upon the report of a referee, with notice of an intention to bring up for review upon, siicli appeal an order made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 3d day of October, 1895, awarding the plaintiff an extra allowance, and an order entered in said clerk’s office on the 21st day ■of October, 1895, denying their motion, to set aside said order of October 3,1895. ■ ....
    This appeal was transferred to the second department from the first department.
    The action was the usual equity suit by a property owner to restrain the maintenance and operation of an elevated railroad in the street in front of his premises, on account of its interference with his easements of light, air and access, and to recover past damages. The judgment enjoined the defendants accordingly, unless, within a specified time, they should pay to the plaintiff the'sum of $17,500, together with interest thereon, for a conveyance of the easements.. It also awarded $14,265, with certain interest, to the plaintiff for past damages, together with costs and an extra allowance. •
    
      Sherrill Babcock, for the appellants,
    
      Flamen B, Candler, for the respondent.
   Per Curiam :

We are constrained to reverse this judgment on account of the numerous rulings of the referees on the trial, which are in conflict with the decision of the Court of Appeals in the case of Jamieson v. Kings Co. El. Ry. Co. (147 N. Y. 322). There it was held that it-was “ not permissible to call witnesses who owned property in the vicinity of that involved in the suit, to show what their premises rented for before and after the construction of the railway, in ■order to affect the question of damages to the property there in question.” (Witmark v. N. Y. Elevated R. R. Co., 149 N. Y. 393, 398.) Upon the same principle, proof as to the sums realized, upon sales of other property in the vicinity is inadmissible upon the question .of fee damage. (See Matter of Thompson, 127 N. Y. 463.) But the learned referee, in the case at bar, repeatedly received ■evidence.in behalf of the plaintiff, over the objection and exception of defendants’ counsel, to show what rentals had been paid for other .premises in the neighborhood of the plaintiff’s property, and what other premises had been sold for. He is not justly subject to any criticism at our instance for his rulings in respect to the rental of other properties, inasmuch as the trial took place before the final decision had been rendered in the Jamieson case, and the General Term of this department was of. the opinion that such evidence was admissible. (74 Hun, 637.) The contrary doctrine, however, must now be regarded as finally established.

Recognizing the difficulty which he has to overcome in the rule in the Jamieson case, the learned counsel for the respondent insists that the defendants waived their objection to the testimony concerning neighborhood property by introducing testimony of a similar character themselves, and that, in' any event, such evidence was harmless to the defendants because it was merely cumulative or corroborative of the testimony of the plaintiff’s experts.

"We do not think there was any waiver. By introducing a particular class of evidence in his own behalf to meet his opponent’s evidence of the same character which he has in vain asked the court to keep out of the case, a party who has taken the proper objection and exception does not lose the right to insist upon appeal that the court erred in receiving such evidence in the first instance. (See Nickerson v. Huger, 76 N. Y. 279, 283.)

If it were possible to feel satisfied that the admission of the objectionable evidence did not affect the result, we should be glad to disregard the exceptions in this branch of the case. The probability is, however, that the referee was influenced by the proof of neighborhood -sales and rentals, which was received against the objection and exception of the defendants in such volume and from so many persons. In Innes v. Manhattan Ry. Co. (3 App. Div. 541) it was held that to reverse a judgment on the authority of the Jamieson case the record should show that a specific objection was taken by which the exact question was plainly raised, and it must also appear that “ the incompetent testimony admitted might have affected the court in its determination of the real issues between the parties.” In Stuyvesant v. N. Y. Elevated R. R. Co. (4 App. Div. 159) an objection that a question as to neighborhood rentals called for matter “ not within the issues ” was pronounced sufficient. The same objection would certainly suffice if the question related to the price at which neighborhood property had been sold instead of rented. In the present case, upon the direct examination'of fourteen witnesses for the plaintiff, the express objection that, it was not within the issues was taken by the -defendants to questions calling out evidence of the rentals derived from other property in the neighborhood of the plaintiff’s premises, or the sums realized from sales of , other property; and there were other .witnesses, upon . whose .examination the1 objection taken was equally specific though in a-different form. Even if the testimony which these persons gave was-only cumulative and corroborative, as the-learned counsel for the-plaintiff contends, it is none the less :probable that it affected the conclusion, of the referee-. Upon an issue of fact, where the proofs, are otherwise equally or nearly evenly balanced, the judicial mind may well incline toward the side upon which there is an abundance of corroboration and a weighty accumulation of evidence as compared with that Whose chief witnesses are not thus sustained.

The probability that 'the referee’s findings as to the past damages,, and the amount of compensation which the plaintiff should receive for his easements, were influenced by a consideration of this objectionable evidence, compels us reluctantly to send the case back for anew trial. ■ '

All concurred.

Judgment reversed and new trial granted before a new referee to: be appointed at Special Term, costs to abide the event.  