
    Oliver S. Carter et al., Resp’ts, v. The New York Elevated Railroad Co. et al., App’lts.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 14, 1892.)
    
    Railroad—Elevated—Evidence.
    Upon the trial of an action for an injunction and damages against an elevated railroad the trial court received the opinions of owners of adjoining property as witnesses, to prove the existence and amount of damages sustained by plaintiff. To the questions propounded to such witnesses defendants objected on the ground that the evidence was “ immaterial, incompetent and hypothetical, and that the difference in value was not the measure of damages." Held, that such objection should have been taken specifically that the question calls for a fact not provable by opinion, and as the same question was put to and answered by defendants’ expert witnesses the objection was insufiicient to raise the point that the opinion of the witness was inadmissible.
    (Follett, Oh. J., and Vann, J., dissent.)
    Appeal from a judgment of the general term of the superior court of the city of Few York, affirming a judgment of the special term.
    
      Julien T. Davies, for app’lts; Joseph II Choate, for resp’ts.
    
      
       Affirming 28 St. Rep., 581.
    
   Brown, J.

J.— A careful examination of the voluminous record in this case has failed to disclose any error which would justify the reversal of the judgment. A single question requires notice. The point is made, as it is in nearly all the late appeals in this class of cases, that the trial court erred in receiving the opinions of witnesses as proof of the existence and amount of damages sustained by the respondents.

The objections taken to questions propounded to such witnesses were that the evidence was “ immaterial, incompetent and hypothetical, and that the difference in value was not the measure of damages.”

This court has recently decided that to make available an exception to the admission of testimony of this character the objection must be specifically taken that the question calls for a fact not provable by opinion, Kernochan v. Elevated R. R. Co., 128 N. Y., 559: 41 St. Rep., 110, and reference was there made to the remarks of the court in the McGean case, 117 N. Y„ 219 ; 27 St. Rep., 337.

In McQearüs case, the objection was almost identical with that taken in the case before us. It was that the evidence was “incompetent, irrelevant and hypothetical, and the witness not competent to give an opinion,” and in reference to that form of objection it was said: “ The objection seemed to imply that opinions were competent on the subject. The trial seems to have been conducted on both sides, and more particularly on that of the defendant, upon the theory that all opinions were admissible as to rental value of the premises, and the causes which affected it.”

Such without doubt was the theory of the parties in the case before us, as we find that the identical question, the admission of which is now urged as ground for reversal, was put to and answered by all the expert witnesses called by the defendant on its defense, and as was said in McQearCs case, “it seems ungracious in it now to insist upon a rule which it systematically violated during the course of the trial.”

In view, therefore, of the course pursued by both parties at the trial, we think the case falls within the rule applied in the McQean and Kernochan cases, and we, therefore, hold that the objection was insufficient to raise the point that the opinion of the witness was inadmissible.

Upon the merits of the case, we are of the opinion that the award of damages is amply sustained by the evidence, and the judgment, therefore, should be affirmed, with costs.

All concur, except Follett, Oh. J., and Yaistít, J., dissenting.  