
    GEORGE H. MOORE, et al., Executors, etc., Respondents, v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.
    
      Action to recover damages caused, by the construction and operation of the elevated railroad—Loss of rentals, etc.
    
    In a former action between same parties to recover damages to same property, between May, 1879 and May, 1883, it was adjudged that the damages sustained by plaintiff were at the rate of $300 per year. Counsel for defendants requested the court to rule and to charge the jury that this judgment was conclusive evidence as to the amount of damages sustained by plaintiff between 1879 and 1883.' The court refused so to rule and charge. Reid, that the judgment offered in evidence by the defendants did not adjudicate concerning anything in issue in this action.
    A witness was allowed to testify, against the objection of defendants, to the amount of depreciation in the rental value of plaintiff’s property, due to the elevated railroad. The grounds of defendants’ objection was that the witness was asked to give an opinion as to precisely what the jury was to decide. Reid, that although the witness dii'ectly spoke as to the amount of depreciation, the answer was not injurious to defendants, for at the same time he gave the value before and after the railroad was built, the difference being the amount of depreciation that he had previously testified to. The defendants asked that the complaint be dismissed on the ground that plaintiff was never in possession of the premises. Reid, this was not correct, because if plaintiff was not in occupation during the terms of leases given, they were in occupation between those terms.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 5, 1891.
    Appeal from judgment entered upon the verdict of a jury, and from an order- denying a motion of the defendants for a new trial, upon the judge’s minutes.
    
      
      Davies & Rapallo, attorneys, and Julien T. Davies and Brainard Tolles of counsel, for appellants, argued:—
    I. The learned trial judge erred in refusing to hold that the former judgment was conclusive evidence of the matters therein determined, including the amount of damages sustained between May 1, 1879, and May 1, 1883. A valid judgment upon a question directly involved in a suit is conclusive evidence as to that question in any other suit (although for a different cause of action) between the same parties. Bell v. Merrifield, 109 N. Y. 211; Gates v. Preston, 41 Ib. 113 ; Dunham v. Bower, 77 Ib. 76 ; Collins v. Bennett, 46 Ib. 490. It is true that the jury were not bound to find that the damages from 1883 to 1889 were at the same rate as during thé period from 1879 to 1883. But in view of the fact that the structure and operation of the railroad was substantially the same during both periods, the instruction requested would undoubtedly have had great weight with the jury, and defendants were substantially injured by its refusal.
    II. The learned trial judge erred in permitting the witness Martine to testify to the amount of depreciation in the rental value of plaintiffs’ property due to the elevated railroad. The question asked was objected to, on the ground that “ he is asked to give an opinion as to precisely what this jury was to decide.” The function of an expert in these cases is to state such general and special facts, as to values within the range of his experience, as may be necessary to enable the jury to determine the amount of damages caused by the elevated railroad. It is error to ask the expert for his opinion upon causes and effects. McGean v. Manhattan R. Co., 117 N. Y. 219 ; Avery v. N. Y. Central R. Co., 121 Ib. 31; Atkins v. Manhattan R. Co., 10 N. Y. Supp. 432; per Van Brunt, P. J.
    
      III. The learned trial judge erred in refusing to dismiss the complaint on the ground that plaintiff was never in possession. Actions of this character are substantially actions of trespass. Drucker v. Manhattan R. Co., 106 N. Y. 157, 162. Possession is necessary to sustain the action. Tobias v. Cohn, 36 N. Y. 363; Waterman on Trespass, §§ 948, 949. The possession of a tenant is not sufficient to sustain an action of trespass, even when his lease is taken after the trespass is begun. Avery v. N. Y. Central R. Co., 7 N. Y. Supp. 341. The evidence in this case clearly shows that the premises in question, during all the period for which damages were claimed, were in the possession of tenants.
    
      A. Edward Woodruff, attorney and of counsel, for respondents, argued:—
    I. By the decisions of this court as affirmed in the Court of Appeals it must be deemed to be settled that the elevated railroads are liable to those owning property abutting on the streets occupied by the railroads, for the losses suffered by them through the construction, maintenance and operation of the road, irrespective of the “ Dutch,” “ English ” or “ American” character of the street. Abendroth v. Manhattan Railway Co., 54 N. Y. Superior, 417. Aff’d Court of Appeals ; Seventh Ward Natl. Bank v. N. Y. Elevated, 53 Ib. 412; N. Y. Natl. Bank v. Metropolitan Elevated, 53 Ib. 511; Drucker v. Manhattan Railway Co., 51 Ib. 429; Ireland v. Metropolitan Elevated, 52 Ib. 450; Taylor v. Metropolitan Elevated, 50 Ib. 311; Glover v. Manhattan Railway Co., 51 Ib. 1; Carter v. N. Y. Elevated R. R., 14 State Rep. 860 ; Story v. N. Y. Elevated R. R. Co., 90 Ib. 122; Coggeswell v. N. Y. & N. H. R. R., 103 Ib. 10; Lahr v. Metropolitan Elevated R. R., 104 Ib. 268; Melrady v. Bushwick Railroad Co., 91 Ib. 148; White’s Bank of Buffalo v. Nichols, 64 Ib. 65.
    
      II. On the practically conceded facts, the only real question in the case was the amount of damages the plaintiff should receive, and as to that the verdict was not as favorable to the plaintiff as the facts would have justified. Wakeman v. W. & W. M’f’g Co., 101 N. Y. 105-109; Frances v. Schoellkopf, 53 Ib. 152; Jutter v. Hughes, 67 Ib. 267; Lahr v. Metropolitan Elevated, 104 Ib. 268. What a party receives or is paid for property is some evidence at least of its value. Muller v. Eno, 14 N. Y. 397; Bach v. Levy, 101 Ib. 11; Hoffman v. Conner, 76 Ib. 121; Leach v. Raritan Bay R’y Co., 27 Ib. 457; Gill v. McNamee, 42 Ib. 44 ; Pollen v. Gray, 31 Ib. 549. The yearly rental received for property is simply the price received for the use of the property for a year, and the same principle should apply in respect to there being a presumption that the rental obtained is the fair rental value of the property at the time as would arise in the case of sales. The law does not presume fraud or wrong-doing, but on the contrary, presumes good faith and fair dealing. The fact in evidence is, that after the construction and running of the elevated railroad, the plaintiff’s loss in rent received for her property was $1,000 per year. The cause shown to exist was the existence of the elevated railroad, and it is not unreasonable to find that the cause shown to exist was the cause of the loss. Such evidence as that introduced by the defendant as the present state of things, it is insisted, should have no effect, and it is not entitled to any consideration as affecting the claim in this suit, for the reason that assuming that the building next door did rent for more than the plaintiff’s the fact is entitled to no consideration in the absence of evidence showing the purpose for which the building is rented.
    III. The plaintiff is not called upon to prove her damages ' with mathematical precision. Drucker v. Manhattan Ry. Co., 51 N. Y. Superior, 429; Per curiam Opinion, affirmed in Court of Appeals, 106 N. Y. 147; Sutherland on Damages, 121; Taylor v. Metropolitan Railroad Co., 50 Super. 456; Matter Utica & C. R. R. Co., 56 Barb. 466; Baltimore & Potomac R. R. v. Fifth Baptist Church, 108 U. S. 317; Wakeman v. W. & W. Mfg. Co., 101 W. Y. 205-209. “Rents are graduated according to the value of the property and to an average of profits arrived at by very extended observation; and so accurate are the results of experience in this respect that rents are rendered nearly, if not quite, as certain as the market value of commodities at a particular time and place.” See also opinion of this court in St. John v. The Mayor, etc., of New York, 6 Duer, 315, where it is said in the opinion: “ The plaintiff showed the actual receipts of his hotel for a year or more previous to the obstruction complained of, the actual daily receipts during the continuance of the obstruction, and again the actual receipts for some months after the obstruction was removed. This furnished the means of computation and of satisfactorily ascertaining the diminution of receipts.” See also Frances v. Schoellkopf, 53 N. Y. 152; Jutt v. Hughes, 67 Ib. 267.
   Per Curiam.

The learned judge was right in holding that the judgment offered in evidence by the defendants did not adjudicate concerning anything in issue in the present action.

A witness, Martin, was allowed to testify to the amount of depreciation in the rental value of plaintiff's property due to the elevated railroad. This was objected to by defendants on the ground that the witness was asked to give an opinion as to what the jury was to decide. The counsel objecting avowed that he did not object to an opinion being given as to rental value before and after the elevated railroad was built in front of the premises Although the witness directly spoke as to the amount of depreciation, the answer was not injurious, for, at the same time, he gave the value before and after the railroad was built, the difference being the amount of depreciar tion he testified to.

The defendants asked that the complaint be dismissed on the ground that plaintiff was never in possession of the premises. This was not correct, because if not in occupation during the terms of leases given, they were in occupation between those terms. No questions as to damages were raised upon this basis.

It is not necessary to determine whether the recovery of interest was lawful. No exception that would raise such a question was taken.

Judgment and order affirmed, with costs.

Freedman, J.

I concur but wish to add that under the decision of Hamilton v. Manhattan Railway Co., 58 N. Y. Super. Gt. 17, the leases could make no difference on the question of liability.  