
    John Murtha, Respondent, v. The Metropolitan Elevated Railway Co. et al., Appellants.
    (New York Common Pleas
    General Term,
    November, 1895.)
    .In an action against an elevated, railroad for" injunctive" relief arid dam- . ages; evidence of. stateinents of persons applying- to rent apartments . particularly in premises other than those in suit, that, they would not live along that line with the nuisance" of the road running there, is.iriad- • missibl'e as part of the res gesta, and is objectionable as hearsay.
    Appeal from a judgment in favor of the "plaintiff for injunctive relief and damages for the loss of rental value, which was entered upon th’e report of a refe'ree., .
    - Action to restrain the defendants’ interference, by meads of - fhe maintenance and operation of their elevated railway in the •Street.in- front thereof, with the. easements-appurtenant to the plaintiff’s'abutting, premises. x
    
      jwlien T. Demies and Frederick AlUs, for. appellants.
    
      Thomas F. Murtha, for respondent.-
   Bisohoff, J.

"For material error in the-admission'of'incompotent evidence, against the objection of the defendants’ counsel' .the judgment must, be reversed.

Upon his direct examination .Waterlow, called for the plaintiff- as an expert touching Tee and rental values^ was -asked: .“ Can .you,state more specifically what that diffiqulty has been in renting property on Sixth avenue since the erection of the elevated road, as compared with a period before its erection on Sixth avenue, north of Forty-second street ? ” The question did not necessarily call for hearsay testimony, and the objection of the defendants’ counsel upon that ground was," therefore, properly overruled. The witness, however,, answered: “ There would be the objection of parties ydiO' applied to rent apartments; when I tell them I have certain property on the line of Sixth avenue, mentioning different-places, they would state, on an average, three probably out of every five at least, that they would not live along that" line-with the nuisance of the road running there.” The record as-printed reads: “ There would be the objection to parties,” etc.,, but by oral stipulation of counsel in open court upon the argument of the appeal, the record was corrected as above quoted.

The motion of the defendants’ counsel tp strike the last-mentioned answer out as hearsay should have been granted. Mooney v. N. Y. El. R. R. Co., 16 Daly, 145; Saxton v. N. Y. El. R. R. Co., 44 N. Y. St. Repr. 832. The statements-of the persons applying to rent apartments, more particularly in premises other than those in suit, were not admissible as-part of the res gestae. They were in no sense concomitant, with any fact in issue, which latter the statements would serve to illustrate. 1 Gfreenl. Ev. §§ IOS, et seg. ; 1 Rice Ev. § 212, p. 375 ; Underhill.Ev. §§ 54,.et seg.; Waldele v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 274; People v. O'Neill, 112 id. 355, 361.

The witness’ entire answer was affected with the vice alluded to. Hence, it cannot be successfully urged that the motion of the defendants’ counsel was properly denied because it comprehended the elimination of matter which was not open to the objection stated.

Again, the objectionable testimony bore upon a material point, the-agency of the defendants’ elevated railroad in the lessening of the rental value of the plaintiff’s premises, and from the record we are unable to say that the testimony found no lodgment in the mind of the referee, and that it was not ■considered by him. prejudicially to the defendants in reaching the conclusions made and required in support of the recovery.

Judgment reversed and new trial ordered, costs to the appellants to abide the event.

Pbyob, J., concurs.

Judgment reversed and new trial ordered, costs to appellants to abide event.  