
    John A. C. Gray, App’lt, v. The Manhattan R. Co. et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 20, 1891.)
    
    1. Railroad—Elevated—Damase to fee—Expert witness.
    In an action against an elevated railroad for damage to the fee of abutting owners, it is improper to allow a real estate agent, called as an expert, to testify as to the value of the lots, if there were no interference with the light, air and access.
    2. Same.
    It is improper to ask an expert what, in his opinion, was the best use to which the property could have been put, if it had not been for the elevated railroad, and its interference with the light, air and access.
    8. Same—Appeal—Injunction.
    Where the court found no damages to rental value, and that the premises would not be worth as much had not the railroad been built, and yet found the plaintiff’s fee diminished by $8,000, and gave an injunction unless the railroad took his property at that figure, it leaves the injunction so dependent upon the damages that the general term could not reverse the judgment as to damages, and permit it to stand as to the injunction.
    Appeal from judgment of the general term of the New York •common pleas, reversing judgment in favor of plaintiff.
    The plaintiff was the owner of four vacant lots of land at the corner of Ninth avenue and Twenty-seventh street in the city of New York, and he brought this action as an abutting owner praying for an injunction restraining the defendants from maintaining and operating their road in front of his lots, and for damages caused to his lots, and for other relief.
    The trial court ordered judgment in his favor for the injunction prayed for, provided, however, that the injunction should not issue until after sixty days from the entry of judgment to enable the defendants to acquire his easements in the street by condemnation proceedings, or by the payment of the sum of $8,000, the amount found to be the full damages to the lots.
    The court found no damage to the rental value of the lots prior to the judgment, and found that “said premises would not be worth as much as they now are had the said railway and stations not been built,” and yet he found that the fee of plaintiff’s real estate is diminished in value by the maintenance and operation of the road by the sum of $8,000, and to this finding the defendants excepted. The defendants appealed to the general term, and there the judgment was reversed and a new trial ordered, as appears from the opinion there pronounced, without considering other alleged errors, on the ground that the findings of the court showed that the plaintiff’s real estate was not damaged by the defendants, and that the trial judge erred as to the damages. From the order of reversal the plaintiff appealed to this court
    
      Esek Cowen and George P. Smith, for app’lt; John F. Dillon and Julien T. Davies, for resp’.ts.
    
      
       Affirming 35 N. Y. State Rep., 32.
    
   Earl, J.

The main question argued before us and considered at the general term, is whether the plaintiff could maintain his judgment in the face of a finding that his “ premises would not be worth as much as they now are had the railway and stations not been built.” This is a very important question, and its determination may not only affect this case, but many others pending or to be commenced. We do not deem it important or proper now to determine it, as there are other grounds for the affirmance of the order appealed from. That question may remain undetermined in this court until it is presented for consideration in some case where its solution is required.

We may look into the record and affirm the order if any error is found there to the prejudice of the defendants.

The question of fee damage was closely contested upon the trial. The principal litigation between the parties related to that; and the defendants had the right to have it determined upon competent evidence.

Martine, an expert witness called by the plaintiff, was asked this question: “What would be the value of the four lots at present if there were no interference with the light, air and access which you have described ? ” 'The defendants sufficiently objected to this; the court overruled the objection and the witness answered: “Worth $112,000.” Curtis, another expert witness, was asked this question: “Will you state what, in your opinion, would the value of the property be were it not for the existence of this interference with light, air and access by the elevated road and its structures and its cars?” Defendants’ objections being overruled, the witness answered: “$110,000.” Henriques, also an expert witness for the plaintiff, was asked a similar question, and defendants’ objections being overruled, he answered: “In the neighborhood of $112,000 to $115,000.” We have just decided in Roberts v. The Elevated Railroad and Doyle v. The Same, that such questions were incompetent and that it is erroneous to permit them to be answered. The reasons for our decision are found in the opinion of Judge Peckham in the case first cited, and we need add nothing thereto.

The witness Henriques was also asked this question : “ What, in your opinion, is the best use to which this property (the four lots) could have been put if it had not been for the elevated railroad and this interference ? ” This was objected to on behalf of the defendants, “ as not within the issue, as hypothetical and conjectural, and as not bearing upon the value of the easements in question nor the true measure of damages, and as calling for the whole of the damage and not that resulting merely from a violation of the plaintiff’s easement, and as incompetent, irrelevant and immaterial.” The court overruled the objections and the witness answered: “First-class dwellings.” He was then asked: 41 What is its best available use now ? ” This was objected to on the same grounds and the witness was permitted to answer: Stores and flat houses.”

The first of these two questions was clearly incompetent for the same reasons which condemn the questions first above referred to. What would have been the state of things at and in the vicinity of plaintiff's lots if the elevated road had not been constructed, was mere matter of speculation and conjecture. No opinion in reference thereto could be based upon observed or proved facts. The conditions upon which the witness was asked to base his opinion never existed and could not exist Nor was it competent to prove by the opinions of witnesses the “ best use ” to which the lots could have been or could be put. The facts bearing upon the matter should be proved, and the inferences from them should be drawn by the triers of fact.

It is claimed, however, that the general term ought not to have reversed the whole judgment, and that it should have permitted that portion of the judgment to stand which awarded the injunction. The injunction was not absolutely awarded, but it was .awarded substantially upon the condition that if the defendant would pay the plaintiff the damage done to his lots by the taking of his easements, which was found to be $8,000, it should not issue. The amount of damage was thus quite material. Unless the court had found it to be substantial, it could, in the exercise of its discretion, have withheld the injunction and left the plaintiff to his remedy at law. An equity court is not bound to issue an injunction when it will produce great public or private mischief merely for the purpose of protecting a technical or unsubstantial right. McHenry v. Jewett, 90 N. Y., 58; Health Department v. Purdon, 99 id., 237; Jeffers v. Jeffers, 107 id., 650; 12 N. Y. State Rep., 483; Genet v. D.& H Canal Co., 122 N. Y., 505 ; 34 N. Y. State Rep., 246; Thomas v. Mutual Protective Union, 121 N. Y., 45 ; 30 N. Y. State Rep., 563; MacLaury v. Hart, 121 N. Y, 636; 31 N. Y. State Rep., 939. The injunction is so dependent upon the damages that the general term could not with propriety reverse the judgment as to damages and permit it to stand as to the injunction. But even if it could have reversed the judgment in part, it is at least generally in the discretion of the court when it finds error in part of a judgment requiring a reversal of such part, to reverse the whole judgment, and that discretion will not, certainly, except under peculiar circumstances, which do not exist here, be interfered with upon appeal to this court. For these views the case of Roberts v. The Elevated Railroad is also an authority.

For the errors mentioned the order appealed from should be affirmed and judgment absolute ordered for the defendants, with ■costs.

All concur, except Finch, J., absent, and Gray, J., not sitting.  