
    American Bank-Note Co. v. Metropolitan El. Ry. Co. et al.
    
    
      (Supreme Court, General Term, First Department.
    
    March 31, 1892.)
    1. Elevated Railroads—Damages to Personal Property.
    In an action by a bank-note engraving company to restrain the operation of an elevated railroad unless it should pay for easements taken, no damages can be recovered for injuries to plaintiff’s personal property, consisting of plates, paper, processes, etc., arising from the exclusion of light and the precipitation of cinders.
    2. ' Appeal—Admission oe Improper Evidence—Effect of Finding.
    The improper admission of opinion evidence is not cured by a finding of the court, to the effect that such evidence is disregarded “except where the opinion is a matter of personal experience and knowledge of the expert, as shown by prior and later testimony;” the appellate court having no means of determining how much of such testimony the trial court considered to be so fortified.
    3. Elevated Railroads—Judgment against Lessee—Res Adjudicata.
    Plaintiff’s premises were affected by two elevated railroads, one on either side, erected by different corporations, but operated by a lessee of both roads. Held, that a judgment against one corporation for easements taken on one side was no bar to an action against the other side, though the lessee of both corporations was a defendant in both actions;-plaintiff’s ulterior remedy being against the lessors separately, if it failed in obtaining satisfaction from the lessee.
    Appeal from special term, New York county.
    Action by the American Bank-Note Company against the Metropolitan Elevated Bailway Company and another. Erom a judgment for plaintiff, defendants appeal.
    Beversed.
    Argued before Van Brunt, P. J., and O’Brien and Patterson, JJ.
    
      Davies <6 Rapallo, (Bdward C. James, of counsel,) for appellants. Peek-ham & Tyler, (W. G. Peekham, of counsel,) for respondent.
   Van Brunt, P. J.

We think that this judgment must be reversed because of errors in the admission of evidence, and also because of error in reference to an allowance for damages to personal property. This action was brought to enjoin the operation of the elevated railroad unless they should pay for easements which had been taken by them in the street in front of the plaintiff’s premises, and by which the said premises had been depreciated in value. The plaintiff’s corporate business is that of bank-note engraving and printing, which business is one requiring good air and light, free from dust and other impurities of a like character. The plaintiff gave evidence tending to-show the value of the machinery, fixed and unfixed, which was contained in the part of the building covered by the suit in question, and of damages to-machinery, plates, paper,-processes, and business thereof arising from interference with the light by the erection of the defendants’ structure, and also arising from the cinders coming from the engines used in operating the defendants’ road. The learned court gave judgment in this action for such damages to the personal property of the plaintiffs. This, we think, was error. No damages of this class can be recovered in an action such as the one at bar as incidental thereto. This action, as has already been stated, is to restrain the running of the road unless they paid the value of the easements taken, which value is to be ascertained by determining the depreciation of the plaintiff’s premises, caused by reason of the erection and operation of the road. As incident to such an action, past damages in the shape of diminution in rental or usable value of the premises occasioned by this continuing trespass have been allowed. But in no case has the court gone so far as to hold that damages to personal property might be recovered in an action of this description. The action in question is one relating entirely to the realty, and has no reference to any question as to personal property; and if any damages have been sustained by personal property, which the plaintiffs can recover against the defendants, it must be by an action of a different nature.

Error seems also to have been committed upon the part of the learned court in allowing evidence of the opinion of witnesses in respect to the amount of damage done by the operation of defendants’ railroad. Various witnesses were allowed to give their estimates as to the annual damages arising from the various causes which were mentioned as interfering with the plaintiff’s business. The effect of the admission of such testimony seems to have been realized by the learned court in a finding which was to the effect that the testimony of plaintiff’s experts is disregarded and excluded as to all matters of opinion, except where the opinion is a matter of personal experience and personal knowledge of the expert, as shown by prior and later testimony. But this finding by no means cured the error. It is impossible for the appellate court to determine how much of tills objectionable testimony was considered by the court, and how much it considered to be matters of personal experience, as shown by later and prior testimony, and how much was not so fortified. The only way in which evidence can be removed from the record is to strike it therefrom, so that the appellate court may know what is intended to be excluded, and not leave it entirely to inference.

The claim is made that a recovery by this plaintiff for damage to another portion of the building erected upon these premises, by an elevated railroad running upon another street, is a bar to a recovery i n this action. We do not think that any such claim can prevail. These roads were erected by different corporations; and although one of the defendants, the Manhattan Company, has become the lessee of both roads, and is a defendant in both actions, yet the ultimate rights of the parties are different. Notwithstanding the lease, their ulterior remedies, if they should fail in obtaining satisfaction from the Manhattan Company, would be against each of the other companies separately; and in respect thereto they would have no community of interest, and it would have been improper to have joined them in the same action. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.  