
    Leale v. Metropolitan El. Ry. Co. et al.
    
    
      (Supreme Court, General Term, First Department.
    
    November 30, 1891.)
    1. Elevated Railways—Damages to Property—Freight Depot.
    A property owner is not entitled to recover for the depreciation of value of Ms property, occasioned by the maintenance of a freight depot for an elevated railway in a building next but one to his premises, where such depot is not in the street or on any property subject to his easement, and there is nothing to show that its maintenance is illegal.
    2. Same—Evidence of Value—Hearsay.
    In an action for damages to city property, occasioned by the operation of an elevated railway in the street in front of it, evidence of the prices at which adjoining property was offered to the owner at the time he bought that in question is inadmissible.
    Appeal from special term, New York county. Reversed.
    Action by Charles A. Leale against the Metropolitan Elevated Railway Company and the Manhattan Railway Company for an injunction and for damages. There was judgment for plaintiff on a trial by the court, and defendants appeal.
    Argued before Van Brent, P. J., and Daniels and Ingraham, JJ.
    
      Davies & Rapallo, (Julien T. Davies and Samuel Blythe Rogers, of counsel,) for appellants. Dos Passos Bros., (Benj. F. Dos Passos, of counsel,) for respondent.
   Ingraham, J.

The plaintiff alleges that defendants have erected, constructed, and maintain an elevated railroad and station at the intersection of Eighth avenue and Fifty-Third street, in front of plaintiff’s premises; and they also have established a freight station in a house or building next but one to the plaintiff’s premises, and connected the aforesaid railroad station and the freight station by a continuous platform, which covers or is built over the whole of the sidewalk; and the complaint demanded judgment that each and both of the defendants be'perpetually restrained and enjoined from maintaining, constructing, or operating the above-described railroad, and from maintaining and using the station at the corner of Fifty-Third street and Eighth avenue, and to recover damages for the loss of rentals caused by the construction and maintenance of such railroad and station. The court found the construction and maintenance of the railroad and station, and also the following: “Tenth, that soon after the commencement and operation of said road the defendants erected and established, and still use and maintain, a freight depot in the building next but one to the plaintiff’s premises, and westerly therefrom, the platform of which said depot extends to within twenty feet of the plaintiff’s house, and which said platform completely extends over the sidewalk below;” and, “seventeenth, that the annual rental value of said premises, by reason of the construction and operation of said railroad and of the depot and freight depot aforesaid, has been diminished in the sum of $600;' and that the fee value of said premises for the same reason and cause has been diminished in the sum of $6,500;” and, as conclusion of law, that plaintiff is entitled to recover from defendants the depreciation of the rental value of said property, and that plaintiff is also entitled to recover from defendants damages in the sum of $6,500 for the depreciation of the fee value of the said premises, and that plaintiff is entitled to an injunction restraining them from operating and maintaining the structure and railroad, running cars and engines, and operating the same in front of plaintiff’s premises; and judgment was entered whereby plaintiff recovered from defendants the sum of $10,-720.10, being the amount of the damage to the rental value to the premises, with interest and costs, with an injunction restraining the operation and maintenance of the railroad in front of plaintiff’s premises, unless the defendants pay to the plaintiff the sum of $6,500, the amount of the depreciation •of the fee of the plaintiff’s premises. The damage thus caused to the plaintiff’s property is found by the court to be caused by the maintenance of the •elevated railroad and the depot and freight depot. Such freight depot has been found to have been established in the building next but one to the plaintiff’s premises. It is not in the street, or upon any property that is subject •to plaintiff’s easement. There is no evidence in the case to show, nor is there any finding, that the employment or use of this building for a depot was illegal, or interfered in any other way with plaintiff’s rights or property. It is impossible for us to say how much of the total damage to the rental value ■of the property was caused by the maintenance and operation of the railroad ¡structure in the street and how much was caused by the maintenance of the •depot in the building on the street, or how much of the $6,500 found by the •court as the depreciation of the fee value of the property was caused by the •elevated railroad structure or the depot. So far as appears, the defendants •who maintained the depot in the building had as much right to use theirprop•erty for that purpose as the plaintiff had as to his property, and upon no principle can plaintiff recover damages caused to his property by reason of the use of the house or building for a depot, either by the defendants or any other corporation. Nor do 1 think that there is any evidence to justify the finding that these defendants maintained or operated the said depot. While the denial of the allegation as to the maintenance and operation of the depot is not very specific, I think it is sufficient to raise an issue as to whetherdefendants had established and maintained such freight depot in the building; and the fact, conceded by the defendants on the trial, that freight and baggage was taken at No. 243 West Fifty-Third street from the platform, and put into a baggage-car of the elevated railroad, and that it is hauled by an engine of the elevated railroad eight or ten times a day; that the car is laden and unladen there, and that the Manhattan Railroad derives a revenue from that business; with the limitation to such admission that it was not admitted that either of the defendants was concerned with the handling of the baggage or freight at that place upon their cars,—is not an admission that the depot is operated and maintained by the defendants, and the testimony introduced by defendants shows that such depot is not maintained by the defendants, but another corporation, known as the “New York City <& Northern Railroad Company.”

Plaintiff on the trial testified that at the time he purchased the property in question he made inquiry as to what neighboring property was held at, and as to efforts to purchase neighboring property in Fifty-Third street immediately contiguous to his own property. He was then asked this question: “Question. Did you ascertain at that time what the property was held at?” That question was objected to by the counsel for defendants as irrelevant, incompetent, immaterial, and hearsay. The objection was overruled, to which the defendants excepted, and the witness answered: “I saw the owner of the property 235,—a similar house to mine; and, after seeing him two or three times, the lowest price he would take for his house was $23,000.” Counsel for defendants then objected to the answer, and moved to strike it out, on the ground that it called for the opinion of the witness, and also on the ground that it is hearsay. The motion was denied, and evidence admitted, to which the defendants excepted, and the witness continued his answer, “No. 237 was offered to me for $21,000;” and the plaintiff was subsequently allowed to testify to interviews with the owners of both houses 235 and 237, and offers made to him for the sale of such houses, and the counsel for the defendants then objected to all of the foregoing questions and answers, and the court admitted the same, to which the defendants excepted. We think this evidence was all inadmissible, and should have been excluded by the court. See case of Keller v. Paine, 34 Hun, 167, and cases there cited. Without passing upon the other questions raised, for the reasons before stated, the judgment must be reversed, and a new trial ordered, with costs to appellants to abide the event. All concur.  