
    Eugene O’Sullivan and Others, Respondents, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants.
    
      Evidence —action against an elevated railroad for rental damages — examination of witnesses as to rental values- of specific properties, allowable only on erossexamination.
    
    Where the evidence given upon the part of abutting owners, in an action brought by them- to recover rental damages resulting from the maintenance and operation of an- elevated railroad in the city of New York, is confined strictly to showing, by persons competent to speak, the general course and current of values, the defendant is entitled to cross-examine' such witnesses as to particular properties and as t-o their rental history, but it is not entitled to examine, sub- • sequently, and as a part of its own case, its own witnesses in chief as to the rental history of specific properties situated in the same streets as to which it had already cross-examined the witnesses of the plaintiffs.
    Appeal by the defendants, The New York Elevated Railroad Company-and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the. office of the clerk of the county of New York on the 5th day of August, 1896, upon the decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring up for review an order of the Superior Court of the city of New York, entered in the office of the clerk of said court on the 26th day of November, 1895, continuing the. action and substituting parties plaintiff.
    
      Julien T. Davies and Brainard Tolles for the appellants.
    
      Joseph H. Choate, for the respondents..
   Patterson, J.:

This is one of the ordinary suits brought to restrain the operation of elevated railways and, as incidental thereto, to recover damages for impairment of rental values caused by the maintenance of the-defendants’ structure and the use of the same as a railway in front, of the plaintiffs’ premises. The .subject of fee damage has been eliminated from the case, that matter having been settled by the' defendants making compensation (since the judgment herein was-entered) for the easements taken. We have, therefore, to consider only so much of the case as is involved in the claim for past damages to rental value, covering a period of something over nineteen years, viz., from the time of the completion, of the railway structure up to the date of the trial. The premises are Nos. 148, 150 and 152 Pearl street, an important piece of property, forming the southeast corner of Pearl and Wall streets, and No.. 92 Pearl street, between Wall street and Old Slip.

The main objection urged by the defendants on this appeal is that the awards are excessive. The argument is made that the trial justice fixed the amount allowed by him as damages for depreciation in rental value upon an erroneous basis, and hence the claimed exorbitant award. An attentive reader of the voluminous record before us could not fall to be impressed by the fact that within the scope of the evidence the amount awarded might have been very largely increased had the judge below adopted one theory upon which a recovery might be sustained, viz., the application of an established ratio between rental and fee value; but it is evident, from the result arrived at, that that means of ascertaining the amount of damages was not used by the court. It is assumed by the appellants' that as to the more important, i. e., the corner properties, the justice at Special Term resorted to an easy and offhand method of reaching the result attained by first arbitrarily fixing a certain annual sum at which he conceived the property would have rented but for the existence and operation of the road; then deducting from that the rents actually received each year and allowing the resultant balance as damages. There is nothing to justify such a criticism of the decision of the court below. It is not stated by the judge to be the method by which he reached his conclusion, and it is not to be inferred from forced coincidences, the product of ingenious arithmetical calculations. The question to be determined was the diminution, if any, of rental values caused by the presence and operation of the elevated railway in front of the premises of the plaintiffs, and arising from that and that alone. It is claimed by the defendants that there were other operative causes diminishing rental values; that the buildings are old and not able to compete with the more commodious, better-constructed and more desirable modern structures somewhere in the vicinity. There is nothing to show that the court below did not take into consideration all the evidence bearing upon that matter. There was conflicting evidence respecting it. One witness (Golding) swore that to his-own knowledge, and within his own experience as an agent for renting very many of the newest and best-equipped modern buildings in the lower part of the city, the erection of that very superior' class of office buildings did not materially affect the occupation or rental value of the older and less convenient buildings, and this would apply peculiarly to such exceptionally well-situated property as that of the plaintiffs, the subject of this suit. It was for the court to weigh all the proofs, and we are not able to discover that it failed to do so fairly and wisely or that it ignored any evidence relating to either or all of the elements properly addressed to the solution of, the one question, as to rental value, before it for determination. Upon an analysis of the whole evidence, sifting the testimony of the witnesses on both sides, and comparing their -statements and regarding the history of this particular property and the undoubted effects of the operation of the road-upon it, we think the conclusion of the court was just and altogether reasonable. The same may be said concerning the premises No. 92 Pearl street.

A ruling of the trial justice rejecting certain testimony offered by the defendants has been made the subject of elaborate discussion by the appellants. The plaintiffs, in presenting their proofs as to the decline of rental values, kept themselves scrupulously within the rule laid down in Jamieson v. Kings Co. El. R. R. (147 N. Y. 322). They confined themselves strictly to showing the general course and current of values * * * by persons competent to

speak.” On cross-examination these witnesses were interrogated as to particular properties; and the extent of their knowledge and the reliability of their testimony were thus tested by an examination as to their acquaintance with the history of such specific properties. That was legitimate cross-examination and within the permission of the rule in Jamieson’s case. But when the defendants came to put in their case they sought to examine witnesses in chief as to the rental history of specific properties situated in the same streets, as to which on cross-examination they had interrogated the plaintiffs’ witnesses. That evidence was excluded, and it is now contended that the defendants were entitled to it, and that the rule in the Jamieson case did not compel its exclusion, because it was addressed, first, to showing that the plaintiffs’ experts were not possessed of sufficient knowledge to enable them to give reliable testimony; second, to show the existence of other causes tending to reduce rents than the presence and operation of the elevated railway, and, third, to rebut any inference to be drawn from the testimony of the plaintiffs’ witnesses that the elevated railway was the sole cause of the decline in the rentals of the plaintiffs’ property.

The argument of the appellants is plausible, but if we are to follow and be governed by the rule as deduced from the Jamieson case, and subsequently reannounced in the Witmark Case (149 N. Y. 393), that argument is unsound. What is that rule? In a word, that such evidence as that sought to be given here is incompetent, relating as it does to purely collateral matter. It may be introduced on cross-examination and there it ends. The kind of evidence condemned in the cases referred to is not admissible in chief for any purpose. The errors of experts or other seemingly qualified persons may be shown, and the inferences to be drawn from their testimony rebutted by better instructed persons on the other side, and the operation of causes other than the elevated railway in reducing rents must be shown by independent proof of such causes and not by deductions from the experience of particular landlords in renting • their respective properties, which would necessarily involve inquiries into every detail of plan, condition, state of repair and general administration of each house made the subject of investigation. Where that would lead to is well stated in the Witmarh Case (p. 400), in which it is said: “ The extent of the investigation would be subject to no limits except such as might he presented by the discretion of the trial court, and even when it could be shown that the property was substantially similar as to locality and surroundings, yet different-parcels of property are affected in their values by so many different causes that in the end there must be left a wide field for conjecture and speculation. The scope .of the inquiry would be enlarged beyond all necessary and proper limits, and the minds of the court and jury confused with a multitude of conflicting and irrelevant facts.” The court below was right in its ruling as t.o this rejected evidence, unless we have altogether misapprehendecl the ruling in the Jamieson case, the reasons given for it and the necessary .consequences of it. No other exception requires consideration, and the judgment must be affirmed, with costs.

Van Brunt, P. J., Rumsey, O’Brien and Parker, JJ., concurred.

Judgment affirmed, with costs.  