
    Stephen Ryder, Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895)
    
    Evidence—Elevated bailway—Damages.
    In an action against an elevated railway for damages, the burden rests upon the plaintiff to make out his case by a fair preponderance of testimony, and it is not sufficient for him to show only that Ms property had depreciated in value since the construction of the railroad, but it is incumbent upon Mm to produce testimony from which the court can fairly infer that the loss was to be attributed to the company.
    Appeal from a judgment in favor of plaintiff.
    
      William H. Page, Jr., for app’lt; Francis B. Whitney, for resp’t
   Brown, P. J.

We are of the opinion that the judgment appealed from is not sustained by the weight of evidence, and should be reversed. The property owned by the plaintiff is described as Ho. 379 Lexington avenue, and consisted of a lot 100 feet in depth, upon which there is a small frame building, standing back some distance from the street, and nearly fifty feet from the defendant’s structurc. The railroad was constructed and in operation in the year 1888, The plaintiff was not called as a witness, and it does not appear who occupied the property during any portion of the period involved in the action, nor what the actual rents have been before or since, the construction of the road. The respondent refers to the witness Baynard on this subject, but I understand the testimony of that witness on the subject of actual rents to refer to 367 Lexington avenue, where he lived, and not to the plaintiff’s house. The only testimony as to rental or fee value introduced by the plaintiff was that of one expert witness, who testified that rental values had fallen, since the construction of the road, from $22 to $16 per month, and fee values from $2,600 to $1,800. Opposed to this testimony was that of four expert witnesses called by the defendant, who testified in substance that both the rental and fee values of the property had increased since the construction of the road, and five specific pieces of property near that of the plaintiff were shown to rent for more at the present time than before the road was built,- and several pieces of property in the immediate neighborhood were also shown to have sold for a higher price since the construction of the road than before. While it is true that the increase in value of the several properties might be due to other causes than the existence of the railroad or the general rise in value, it is equally true that, if plaintiff’s property has depreciated, it may have done so from causes other than those to be referred to the railroad, and there is not a word of testimony in the case from which it can be inferred that, if the value of the plaintiff’s property has fallen, such is the result of the existence and operation of the railroad. The burden rested upon the plaintiff to make out his case by a fair preponderance of testimony. It was not sufficient for him to show only that his property had depreciated in value since the construction of the railroad. Very many causes may have operated to reduce the value of the property during the seven years that'have elapsed since the railroad was first constructed, and it was incumbent upon the plaintiff to produce testimony from which the court could fairly infer that the loss was to be attributed to the defendant. In the absence of any explanation why the plaintiff was not sworn as a witness we must infer that his testimony, if it had been given, would not have sustained his cause of action. As the case was rested wholly upon expert evidence, the decided weight of testimony is upon the side of t.he defendant.

The judgment must be reversed, and a new trial granted, with costs to abide the event. All concur.  