
    Charles A. Leale, Resp’t, v. The Manhattan Railway Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 30, 1891.)
    
    1. Railroad—Elevated—Freight depot.
    In an action to restrain the operation of an elevated railroad and for damages, the plaintiff cannot recover for depreciation caused by a freight depot established in the building next but one to his premises, where such depot is not in the street or on property subject to plaintiff's easement, and there is no evidence that such use of the building is illegal.
    2. Same—Evidence.
    In such action evidence of the prices at which adjoining property was offered to plaintiff at the time he bought is inadmissible.
    Appeal from judgment entered on the decision of the court at special term.
    
      Samuel Blythe Rogers, for app’lts; B. F. Dos Passos, for resp’t.
   Ingraham, J.

The plaintiff alleges that defendant has erected, constructed and maintains an elevated railroad and station at the intersection of Eighth avenue and Fifty-third street in front of plaintiff’s premises, an'd they also have established a freight station in a house or building next but one to the plaintiff’s premises and connected the aforesaid railroad station and the freight station by a continuous platform which covers or is built over the whole of the sidewalk, and the complaint demanded judgment that each and both of the defendants be perpetually restrained and enjoined from maintaining, constructing or operating the above described railroad and from maintaining and using the station at the corner of Fifty-third street and Eighth avenue and to recover damages for the loss of rentals caused by the construction and maintenance of such railroad and station.

The court found the construction and maintenance of the railroad and station, and also the following findings:

“ Tenth. That soon after the commencement and operation of said road, the defendants erected and established and still use and maintain a freight depot in the building next but one to the plaintiff’s premises and westerly therefrom, the platform of which said depot extends to within twenty feet of the plaintiff’s house and which said platform completely extends over the sidewalk below, and,

Seventeenth. That. the annual rental value of said premises, by reason of the construction and operation of said railroad and of the depot and freight depot aforesaid, has been diminished in the sum of $600, and that the fee value of said premises, for the same reason and cause, have been diminished in the sum of $6,500,” and, as conclusion of law, that plaintiff is entitled to recover from defendant the depreciation of the rental value of said property, and that plaintiff is also entitled to recover from defendants damages in the sum of $6,500, for the depreciation of the fee value of the said premises, and that plaintiff is entitled to an injunction restraining them from operating and maintaining the structure and railroad, running cars and engines and operating the same in front of plaintiff’s premises, and judgment was entered whereby plaintiff recovered from defendant the sum of $10,720.10, being the amount of the damage to the rental value to the premises with interest and costs, with an injunction restraining the operation and maintenance of the railroad in front of plaintiff’s premises unless the defendants pay to the plaintiff the sum of $6,500, the amount of the depreciation of the. fee of the plaintiff’s premises.

The damage thus caused to the plaintiff’s property is found by the court to be caused by the maintenance of the elevated railroad and the depot and freight depot. Such freight depot has been found to have been established in the building next but one to the plaintiff’s premises. It is not in the street or upon any property that is subject to plaintiff’s easement. There is no evidence in the case to show, nor is there any finding, that the employment or use of this building for a depot was illegal or interfered in any other way with plaintiff’s rights or property.

It is impossible for us to say how much of the total damage to the rental value of the propert}^ was caused by the maintenance and operation of the railroad structure in the street, and how much was caused by the maintenance of the depot in the building on the street, or how much of the $6,500 found by the court as the depreciation of the fee value of the property was caused by the elevated railroad structure or the depot.

So far as appears, the defendant who maintained the depot in the building had as much right to use its property for that purpose as the plaintiff had as to his property, and upon no principle can plaintiff recover damages caused to his property by reason of the use of the house or building for a depot either by the defendant or any other corporation.

Hor do I think that there is any evidence to justify the finding that this defendant maintained or operated the said depot.

While the denial of the allegation as to the maintenance and operation of the depot is not very specific, I think it is sufficient to raise an. issue' as to whether defendant, had established and maintained such freight depot in the building, and the fact conceded by the defendant on the trial that freight and baggage was taken at Ho. 243 West Fifty-third street from the platform and put into a baggage car of the elevated railroad, and that it is hauled by an engine of the elevated railroad eight or ten times a day; that the car is laden and unladen there, and that the Manhattan Eailroad derives a revenue from that business, with the limitation to such admission that it was not admitted that either of the defendants was concerned with the handling of the baggage or freight at that place upon their cars, is not an admission that the depot is operated and maintained by the defendants, and the testimony introduced by defendants shows that such depot is not maintained by the defendants, but another corporation known as the N. Y. City & Northern R. R. Co.

Plaintiff on the trial testified that at the time he purchased the property in question he made inquiry as to what neighboring property was held at and as to efforts to purchase neighboring property in Fifty-third street immediately contiguous to his own. property.

He was then asked this question. “ Q. Did you ascertain at-that time what the property was held at ? ”

That question was objected to by the counsel for defendant, as-irrelevant, incompetent, immaterial and hearsay. The objection was overruled, to which the defendant excepted, and the witness answered “ I saw the owner of the property 235, a similar house to mine, and after seeing him two or three times, the lowest price he would take for his house was $23,000.

Counsel for defendants then objected to the answer and moved to strike it out on the ground that it called for the opinion of the-witness, and also on the ground that it is hearsay. The motion was. denied, and evidence admitted to which the defendant excepted,, and the witness continued his answer: “No. 237 was offered to-' me for $21,000,” and the plaintiff was subsequently allowed to-testify to interviews with the owners of both houses, 235 and 237,. and offers made to him for the sale of such houses, and the counsel for the defendant then objected to all of the foregoing questions and answers, and the court admitted the same, to which the defendant excepted.

We think this evidence was all inadmissible and should have-been excluded by the court.

See case of Keller v. Paine, 34 Hun, 167, and cases there-cited.

Without passing upon the other questions raised, for the reasons before stated the judgment must be reversed, new trial ordered, with costs to appellant to abide the event

Van Brunt, P. J., and Daniels, J., concur.  