
    Royal Phelps Carroll, Respondent, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants.
    
      Stipulation that evidence taken in another case may be read—objections taken in the former case are not available—a judgment affirmed where the proof, excluding the incompetent evidence, was sufficient — elements of damage to an abutting owner from the construction of a railroad.
    
    The fact that a stipulation provides that either party may read the testimony ■taken in another case, except that of experts, does not make the rulings as to the admissibility of evidence in such other case rulings in the case at bar.
    
      Quaere, as to the effect, upon the right to take objections, of such a stipulation.
    In an action brought against a railroad corporation by an abutting owner, to recover damages for trespass upon his property and the appropriation of its easements, the court being oí opinion, after eliminating all improper proofs, that the findings of the referee in the plaintiff's favor were amply justified, considered that the judgment should be affirmed.
    Where the property in question is in the business part of a city, and upon a narrow street, -the locality of the property, the use to which it is applicable, and the proximity and location of the railroad, are all matters to be considered in determining the amount of damages.
    Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New YArlc on the 24th day of October, 1895, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 3d day of October, 1895, awarding the plaintiff an extra allowance, and also an order entered in said clerk’s office on the 21st day of October, 1895, denying the defendants’ motion to set aside said order of October 3, 1895.
    The action was brought to restrain the maintenance and operation of the defendants’ elevated railroad in front of the plaintiff’s premises, and to recover the damages resulting from such maintenance and operation.
    
      Sherrill Babcooh and Julien T. D'mies, for the appellants.
    
      Flam,en B. Candler, John Jay Chapman and Fgerton L. Winthrop, Jr., for the respondent.
   Ingeaham, J.:

The appellants call our attention to rulings of the referee in. the admission of testimony which they claim violate the rule laid down in the case of Jamieson v. The Kings County Elevated Railway Company (147 N. Y. 322), and ask us to reverse the' judgment on account of such rulings. The case was tried before a referee, and before the commencement of the trial the parties stipulated “ that either party may read' in evidence such portions of the testimony taken in the case of William P. Douglas against the New York Elevated Railroad Company and the Manhattan Railway Company, excepting the testimony of the experts therein, as counsel may desire.” In pursuance of that stipulation, • both sides read the testimony of a large number of witnesses taken in the Douglas case. The record where any of this testimony was read in from the Douglas case is as follows“ Plaintiff’s counsel reads in evidence the following testimony taken from the case of William P. Douglas v. The New York Elevated, Railroad Company and another. The testimony of Herbert C. Plass, read in. by plaintiff’s counsel as follows : Herbert C. Plass,. a witness called in behalf of plaintiff, being duly sworn, testified as follows: ” Then a series of questions and answers is given, interspersed with objections which are stated to have been taken by coúnsel for the defendants. Conceding that some of these -objections, while not, calling the attention of the referee to the rule applied in the Jamieson case, did present the question as to the competency of the evidence under the pleadings, we do not think that there is anything, in the record.to show that the objections interposed by the defendants to the specific questions asked in the Douglas case were submitted' to the referee in this case, or that he made any ruling upon such objections. Nor did the stipulation under which this testimony was read reserve the right of either party to object to such testimony, or provide that objections which had been taken' and passed .Upon by the referee in the Douglas case should be considered as objections . and rulings made in the case at bar. The fact that counsel have stipulated that testimony which has been taken in one case be read as testimony in. the other, does not .'make the rulings of the court or referee in the case in which the testimony was taken rulings of the court or referee trying the case in which the testimony is read. Questions as to- the competency of any particular evidence and its relevancy must depend upon the issues presented by the pleadings and the condition of the proof in the particular case in which the evidence is offered. It cannot be presumed that the parties intend, when such a stipulation as was made in the present case is entered into, that all rulings as to competency of testimony made by the court or referee in the case in ■ which the testimony was taken, and which presented different issues, can be. considered as applicable to the testimony when read in the other case. The stipulation is absolute that either .party may read in evidence such portions of the- testimony taken in the Douglas case, excepting the testimony of the experts, as counsel may desire. Such a stipulation is inconsistent with the claim that such testimony, which it is stipulated that either party may read, is incompetent or immaterial under the pleadings. Where such a stipulation is made, applying generally to all the testimony taken in a particular action, it must he presumed that the counsel considered and treated it for the pur-, pose of that trial as competent and material, and either party had the right to read such portions of it as he desired. To say that upon an appeal the defeated party could claim that because a referee on a former trial had made an error in deciding that the evidence was competent in the case in which the evidence had been taken, or that had the referee in the case in which the evidence was read passed upon the question as to whether the evidence was competent or material in such case, in the same manner as the referee did in the action in which the testimony was taken, therefore, it was error, and required a reversal of the judgment, would seem to be entirely inconsistent with the intention of the parties as evidenced by tlieir stipulation, and would be most unfair to the referee, and to counsel for the successful party, in making the judgment depend upon rulings not made by the referee, in the trial of this case, and for which neither he nor the counsel for the plaintiff were responsible. As a matter of fact, it is quite clear that neither party had in mind the particular rule which was applied in the Ja/mieson case, as this case .was tried before the decision of the Jamieson case was announced.

The records of the court show that, prior to the announcement of that decision by the Court of Appeals, the parties to this elevated railroad litigation had not applied, in any of the cases, that rule; but these cases were largely tried upon the evidence of the value, both fee and rental, of particular adjacent properties, both on the same street as that of the plaintiff .and on ad joining streets; and it is quite evident that counsel for the defendants did not wish in this ease to rely upon the objections to the testimony as applied in the Jamieson case appears from the fact that this form of objection was not taken to any questions asked of witnesses actually examined in this case. To none of these questions calling for either the rent received or the amounts, realized upon sales of property, other than that described in the complaint, was the objection applied in the Jamie- son case, or the objection that the testimony was incompetent for that reason, or was not within the issues taken, interposed.

Much of the testimony offered by the plaintiff’s experts was, objected to, but in no instance to' which our attention has been called, or that we have been able to discover; after a careful examination of the record, was any objection taken on the ground that, the witness was testifying as to collateral issues, or that such testi-' mony was not within the issues in this case. .

It seems to us quite clear that neither of the parties, upon the trial of this action, had in mind the rule applied in the Jamieson case;; that they did not, as a fact, nor did they intend to, take the objection that the testimony as to the rental or fee value of other specific, property was incompetent for any purpose, but that it was the intention of both parties to rely upon such evidence in determining the-questions at issue.

We have carefully gone over this record, however, and considered the testimony taken before the referee, having eliminated all the testimony which was incompetent within the ruling .of the Jmnieson case, and, after thus eliminating such incompetent testimony, even where it was not properly objected to, we think that the finding of the referee is amply sustained by the evidence. The property >yas. in a business part of the city upon a narrow street, with the defendants’ road running close to the front of the buüding. The locality of the property, the use to which it is applicable and the proximity and location of the defendants’ road are all to be considered by the trial court in determining the amount of damage sustained by the-use of the street, whereby there has been a.trespass upon the plaintiff’s property and an appropriation of his easement. That the evidence shows that such injury is serious is perfectly apparent, and we do not think that we would, upon any view of the case, be justified in putting the parties to the expense of a new trial,- where, eliminating all of the incompetent testimony, we cam see that the injury inflicted upon the plaintiff’s property was serious, and that the award which was made, considering all the circumstances, was moderate.

The judgment should, therefore, be affirmed, with costs.

Williams, Patterson and O’Brien, JJ., concurred; Van Brunt,.

P. J., dissented.

Van Brunt,. P. J. (dissenting):

I dissent. The exceptions were duly before tlie court. It is 'plain that that was the understanding of the court and counsel. They were then considered by plaintiff to be valueless, and, although he was mistaken, there is no reason for depriving the appellants of the ruling.

Judgment affirmed, with costs.  