
    Morris Blum, Resp’t, v. The Manhattan Railway Co. et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    1. Railroad—Elevated—Evidence.
    In an action to restrain the operation of an elevated railroad evidence of an expert to the effect that the physical.effects of the road tended to lessen the rental value of the plaintiff’s premises is inadmissible, as substituting the opinion of the witness for the adjudication of the court on the very issue in litigation.
    2. Evidence—Objection.
    Although a party opposing the introduction of evidence should object before its reception; yet -where it is not raised until afterward, and the court unequivocally recognizes it as seasonably interposed and gives the party an exception, the latter may rely on the security thus tendered by the court.
    3. Same.
    Where the court assumes to apprehend the point of an objection and the evidence is in its nature illegal and its incompetency incapable of. remedy, a general objection avails to raise the question of error for the appellate tribunal.
    Appeal from judgment in equity, awarding an injunction and damages against defendants.
    
      L. C. Dessar, for resp't; John S. Wood, for app’lts.
   Pryor, J.

The fact of injury to plaintiff’s property from defendants’ railroad was, on the evidence, extremely problematical; but although we do not feel authorized to reverse the finding of the learned trial court, still in so close a controversy the admission of incompetent evidence cannot be disregarded as innocuous.

After detailing the physical effects of the railroad on plaintiff's property, an expert witness added, apparently without a question calling for the testimony, that “ these physical effects have an effect upon the rental value of the property.” He was then asked, “ What is that effect ? ” and he answered, “ To lessen the rental value.” Thereupon counsel for defendants objected, “ to that as nob within the cognizance of a real estate expert.” The court replied, “I will allow it, and give you an exception; ” and, counsel for defendants said, “We note an exception to it.”

That the evidence was incompetent is too clear for argument,' Roberts v. R. R. Co., 128 N. Y., 471; 40 St. Rep., 454, and it was incompetent because substituting the opinion of the witness for the adj udication of the court upon the very issue in litigation, and because allowing opinion upon a fact not the subject of expert testimony. Ferguson v. Hubbell, 97 N. Y., 507. Whether the rental value of plaintiff’s property was lessened by the railroad was the precise question for decision; and whether a specific effect upon the physical condition of property impairs its value is surely not a problem beyond the comprehension of a layman. Indeed, that the evidence was inadmissible is not controverted by the learned -counsel for respondent; but his contention is that no sufficient objection presents the error for review.

Undoubtedly, a party opposing the introduction of evidence must object before its reception ; and, unless the evidence be incurably incompetent, must indicate to the court some valid ground of objection. Here it appears that the objection came after the admission of the evidence; but the court by ruling upon the objection and expressly allowing an exception unequivocally recognized the objection as seasonably interposed. But for this concession by the court we cannot say that appellants would not have made a motion to strike out the evidence, and surely default is not to be imputed to a party who relies upon an assurance of security tendered him by the court.

The question then is, did defendants distinguish a valid ground of objection to the evidence? That they- challenged the evidence for incompetency as expert testimony is clear from their objection that the fact deposed to “ was not within the cognizance of the witness as a real, estate expert.” It is impossible to attribute another meaning to the terms of the objection.

The requirement of a specific objection to an offer of evidence is partly for the information of the adverse party in obviating, if possible, the particular ground of objection. But when, as here, the court assumes to apprehend the point of the objection, and the evidence is in its nature illegal and its incompetency incapable of remedy, a general objection avails to raise the question of error for the appellate tribunal. Quinby v. Strauss, 90 N. Y., 664; Tozer v. R. R. Co., 105 id., 659; 8 St. Rep., 56. In support of his contention that the grounds of the objection to the evidence are insufficiently stated, the learned counsel for the respondent cites to us adjudications in the court of appeals. For answer it is enough to say, that the objection apparent on the record relieves this case from the effect of those decisions. Jefferson v. N. Y. E. R. R. Co., 132 N. Y., 483, 487; 44 St. Rep., 629.

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

Daly, Ch. J., and Giegerich, J., concur.  