
    Patrick Hart Resp’t, v. Brooklyn Elevated Railroad Company et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 26, 1895.)
    
    /1. Evidehce—Elevated bailway—Damages.
    Upon, the trial of an action against an elevated railway for damages, evidence as to the rental value of property, other than that of the plaintiff, before and after the construction of the road, is inadmissible.
    2. Appeal—Harmless error.
    A judgment will not be reversed for error in the admission of testimony, when the court is satisfied, upon an examination of the whole case, that the appellants have not been prejudiced thereby.
    Appeal from a judgment in favor of plaintiff and from an order denying a motion to send the case to the circuit, or for a stay pending condemnation proceedings.
    Hoadly, Lauierbach & Johnson and William H. Page, for app’lts; Stephen M. Hoye and Francis B. Whitney, for resp’t.
   Brown, P. J

Upon the trial of this action the court admitted evidence as to the rental value of property, other than that of the plaintiff, before and after the construction of the defendants’ road. The defendants objected to the admission of such testimony, and excepted to the ruling of the court. We are of the opinion that the testimony was inadmissible, and should not have been received. Huntington v. Attrill, 118 N. Y. 365; 29 St. Rep. 5; In re Thompson, 127 N. Y. 463; 40 St. Rep. 200. The rule stated in those cases is as applicable to rental value as to fee' value. In re Thompson it was said that “ a party may not establish the value «of his land by showing what was paid for another parcel similarly situated, because it operates to give to the agreement of the grantor and grantee the effect of evidence by them that the consideration for the conveyance was the market value, without giving to the opposite party the benefit of cross-examination to show that one or both were mistaken.” But, although the ruling admitting the testimony was erroneous, we do not think that it affected the result reached by the court. The amount allowed for loss of rental was small, and is supported by other competent evidence, and the rule is well settled that a judgment will not be reversed for error in the admission of testimony, when the court is satisfied, upon an examination 'of the whole case, that the appellants have not been prejudiced thereby. McGean v. Man. R. R. Co., 117 N. Y. 219; 27 St. Rep. 337. The appellants have not, in this case, been prejudiced by the testimony admitted, and the judgment must be affirmed.

The defendants also appeal, in this and three other cases argued at this term of the court, from an order denying a motion to send the cases to the circuit for trial, and also denying a motion to stay the trial of the action pending condemnation proceedings. The cases were all of an equitable character, and were properly triable at the special term, and defendants were not entitled to a jury trial. The condemnation proceedings were commenced after the actions were at issue and upon the calendar of the court for trial. The decision made by this court in Re Brooklyn El. R. Co., 76 Hun, 79; 57 St. Rep. 652, is not therefore applicable, as in that case the actions which were stayed were commenced after condemnation proceedings were instituted.

The motion was properly denied,- and the order must be affirmed.

Judgment and order affirmed, with costs.

All concur.  