
    Ephraim Drucker, Resp’t, v. Metropolitan Elevated Railway Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 17, 1893.)
    
    1. Elevated Railway—Damages.
    
      A refusal to find a request, in an action by an abutting owner against an elevated railway, that the easements appurtenant to the lot taken for railway uses have only a nominal value, though technically erroneous, is. harmless, where it appears from the findings of the referee that he did not award damages for the supposed value of the easements in themselves.
    2. Evidence—Elevated bailway.
    In an action by an abutting owner against an elevated railway, testimony as to what real estate men told witness as to values of land is incompetent.
    3. Same.
    Where evidence, clearly hearsay and incompetent, is first called out by ■ a party on cross-examination, he cannot complain that his adversary is-permitted to elicit the particulars from such witness.
    Appeal by defendant from a judgment in favor of the plaintiff, entered on the report of a referee.
    
      Davies, Short & Townsend {R. L. Maynard, of counsel), for app'Its; Foster & Adeley {Roger Foster, of counsel), for resp’t.
   Follett, J.

Since April 28, 1887, the plaintiff has been the owner in fee of a lot fifty feet square, situate on the northeast comer of South Fifth avenue and Grand street, but he does not own the fee of any part of either street. ■ On this lot is a briclc building, the first floor of which is occupied by stores and saloons,. and the upper floors mainly as abiding places for persons occupying rooms. The defendants’ elevated road extends through South Fifth avenue in front of the plaintiff’s premises, and at the corner of the avenue and Grand street the defendants maintain a station for passengers. This action was begun June 11, 1890, to recover damages for the diminished rental value of the property since the plaintiff became its owner, caused by the operation- of the road, and for an injunction restraining its future operation. The liability of the defendants for the damages .caused, if any, is not denied; but it is alleged that by the construction and operation of the road, with a station at that place, the value of the property has increased, and also its rental value. The referee found that the rental value from April 28, 1887, to February 25, 1893, the date of his report, was diminished by $1,536.86, or at the rate of about $22 per month. He also held that the plaintiff was entitled to an injunction restraining the operation of the road unless the defendants paid to the plaintiff $4,500 for the decreased value of the property.

The main point relied on for a reversal of the judgment is that the damages awarded, both rental and fee, are excessive. After reading the record, we are of the opinion that this position is untenable, and that the evidence is sufficient to sustain the report, in this respect. The referee was asked by the defendants, but refused, to find : “ (12) These said easements appurtenant to the plaintiff’s land, taken for the said railway uses, aside from any damages to said land, from the said taking, have, in themselves, only a nominal value.”

This was a technical error, but it is apparent that the defendants were not harmed thereby. The referee found: “ (9.) That, by the injuries done and committed by the defendants as aforesaid, the rental value of the plaintiff's said premises has been damaged, over and above any benefit resulting from the construction, maintenance and operation of the defendants’ railroad and station, to the amount of two hundred and sixty-five dollars ($265) per year from April 28, 1887, to the date of this report, or in the total of one thousand five hundred and thirty-six and 36-100 dollars, ($1,536.86). (10.) The value of the easements of light, air, and access of the plaintiff in South Fifth avenue, appurtenant to to the premises above described, taken, appropriated, and used by the defendants in the maintenance and operation of said elevated railroad and station, and the damage to the fee value of plaintiff’s said property in consequence of such taking, appropriating, and use, is the sum of four thousand five hundred dollars ($4,500) over and above any benefits resulting to said premises from the construction, maintainance, and operation of said railroad and station.” “ (22.) The existence and operation of the defendants’ railroad in South Fifth avenue, together with the station at South Fifth avenue and Grand street, has rendered the premises in suit far more accessible than they otherwise would be." He held as a conclusion of law: “ (3.) Plaintiff is not entitled to recover damages in this action, except to the extent, if any, by which the disadvantages of the defendants’ railroad have exceeded the advantages thereof to said premises." By the three findings quoted, which are quite consistent with the other facts found, and the conclusion of law, it is apparent that the damages awarded were consequential, only, not for any supposed value of the easements, in and by themselves, aud that the benefits resulting to the property by the construction and operation of the road and its station were considered and taken into account in assessing the damages.

Victor Levi, a real estate agent, sworn in behalf of the plaintiff as an expert in real estate and rental value, testified on his cross-examination :

“ About 1870 to 1872 or ’73, there was a considerable of a boom in South Fifth avenne property. There was talk about that time among real estate men, of South Fifth avenue becoming a second Broadway."

On the redirect examination the following occurred:

“ Q. Please state all that was said in your hearing in regard to South Fifth avenue becoming a second Broadway, as testified by you in your cross-examination ? (Objected to as incompetent, immaterial and irrelevant, calling for hearsay evidence, and improper. Objection overruled. Exception' by defendants.) A. Well, the different hat and cap men were coming into South Fifth avenue, putting up buildings, and they were immediately occupied; and owners and speculators sáid and told me at the time that they expected that the lots on South Fifth avenue would be as high as Broadway would be, on account of its being a continuous street, running through from Chambers street up through the city, and in consequence of its breadth.”

It is difficult to see why the opinion of real-estate men called out by the defendants in the first instance wás important, but, if the general statements were relevant, the particulars were not irrelevant. It is urged that the ruling above set forth was error. The evidence was clearly hearsay and incompetent, but it was first called out by the defendants, and they cannot complain- that the plaintiff was permitted to give the particulars. The other exceptions to the rulings upon the trial require no comment. The judgment should be affirmed, with costs.

Van Brunt, P. J., concurs in result; Parker, J., concurs.  