1891

ROBERTS V. NEW YORK ELEVATED R. Co.

firmed as to Biscoe and Blanche Hindman, and as to Thomas C. Hindman is reversed, and the

cause is remanded for proceedings consistent
with this opinion.

NEW YORK COURT OF APPEALS.

Edward ROBERTS, Respt.,

v.

Richardson v. Northrup, 66 Barb. 85; Thomp
son v. Dickhart, 66 Barb. 604; Duff v. Lyon,

NEW YORK ELEVATED R. CO. et al., 1 E. D. Smith, 536; Hudson v. Caryl, 2 Thomp.

Appts.

(./.7.8..N. Y..45.5.)

1. In an action by a landowner to compel a company operating an elevated railroad in the street in front of his property to pay the damage done him by cutting off the easements of light, air and access connected with such property, an expert witness cannot be permitted to state what, in his opinion, the amount of such damage is, nor what would have been the present value of the land if the road had not been

& C. 245; Benkard v. Babcock, 27 How. Pr. 391; Newton v. Fordham, 7 Hun, 58; Fleming v. Delaware & H. Canal Co. 8 Hun, 358; Schermerhorn v. Tyler, 11 Hun, 549; Re New York, W. S. & B. R. Co. 29 Hun, 609; Van Wagoner L. & W. R. Co. 27 Hun, 151; Re New York, v. New York Cement Co. 36 Hun, 552; Ranch v. New York, L. & W. R. Co. 17 N. Y. S. R. 401; Re New York Elev. R. Co. 35 N. Y. S. R. 944: Thompson v. Manhattan Elev. R. Co. 29 N. Y. S. R. 720; Malcom v. Metropolitan Elev. R. Co. 36 N. Y. S. R. 741; Wichita & W. R. Co. v. Kuhn, 38 Kan. 104; Burlington & M. R. Co. v. Beebe, 14 Neb. 463; Prosser v. Wapel2. The admission of incompetent evi-lo County, 18 Iowa, 327; Chicago & A. R. Co. dence will not be held to be nonpreju- v. Springfield & N. W. R. Co. 67 Ill. 142; Codicial to defendant in an action to enjoin lumbus, H. V. & T. R. Co. v. Gardner, 11 West. an elevated railroad company from operating its Rep. 264, 45 Ohio St. 309; Evansville, 1. & C. road until it pays the damage done to an abut- S. L. R. Co. v. Fitzpatrick, 10 Ind. 120; White ting property owner, because the company is not bound to pay the ascertained damages to acquire. Stoner, 18 Mo. App. 540; Hames v. Brownthe easement but may submit to the injunction and proceed to acquire the right by eminent do

built.

main.

(October 20, 1891.)

APPEAL by defendants from a judgment of

the General Term of the Superior Court of the City of New York affirming a judgment of the Special Term in favor of plaintiff in an action brought to recover damages for injuries caused to plaintiff's property by the construction and operation of defendants' road. versed.

Re

The facts are stated in the opinion.
Messrs. Julien T. Davies and Brainard
Tolles, for appellants:

The conclusions of the witness upon the very matters which the court had to decide, viz., the existence and amount of damages, were not competent evidence.

McGean v. Manhattan R. Co. 117 N. Y. 219; Avery v. New York Cent. & H. R. R. Co. 121 N. Y. 31. See also Morehouse v. Mathews, 2 N. Y. 514; Clark v. Baird, 9 N. Y. 183; Van Deusen v. Young, 29 N. Y. 9; McGregor v. Brown, 10 N. Y. 114; Marcly v. Shults, 29 N. Y. 346; Teerpenning v. Corn Exch. Ins. Co. 43 N. Y. 279; Green v. Plank, 48 N. Y. 669; Van Zandt v. Mut. Ben. L. Ins. Co. 55 N. Y. 169; Ferguson v. Hubbell, 97 N. Y. 507; Wakeman v. Wheeler & W. Mfg. Co. 2 Cent. Rep. 130, 101 N. Y. 205; Reed v. McConnell, 2 Cent. Rep. Brooklyn, 747, 101 N. Y. 270; Van Wycklen v. 118 N. Y. 424; People v. Kemmler, 7 L. R. A. 715, 119 N. Y. 580; Fish v. Dodge, 4 Denio, 311; Lamoure v. Caryl, Id. 370; Norman v. Wells, 17 Wend. 136; Lincoln v. Saratoga & S. R. Co. 23 Wend. 425; Dunham v. Simmons, 3 Hill, 609; Paige v. Hazard, 5 Hill, 603; Giles v. O'Toole, 4 Barb. 261; Cook v. Brockway, 21 Barb. 331; Simons v. Monier, 29 Barb. 419;

lee, 63 Ala. 277; Thompson v. Pennsylvania R.
124; Tingley v. Providence, 8 R. I. 493; Brown
Co. 51 N. J. L. 42; Crane v. Northfield, 33 Vt.
v. Providence & S. R. Co. 12 R. I. 238.

It may be conceded that the current of au-
thority in Massachusetts is in favor of the ad-

mission of the opinions of witnesses as proof

of the amount of damages in all cases.

Shattuck v. Stoneham Branch R. Co. 6 Allen,
115; Vandine v. Burpee, 13 Met. 288; Swan v.
Middlesex County, 101 Mass. 173; Tucker v.
Massachusetts Cent. R. Co. 118 Mass. 546.

But the decisions are not uniform.
Wesson v. Washburn Iron Co. 13 Allen, 95;
Burt v. Wigglesworth, 117 Mass. 302.

Shattuck v. Stoneham Branch R. Co., supra,
has been followed in Maine, Minnesota, and
West Virginia.

Tebbetts v. Haskins, 16 Me. 283; Portland & R. R. Co. v. Deering, 1 New Eng. Rep. 475, 78 Me. 61; Lehmicke v. St. Paul, S. & T. F R. Co. 19 Minn. 466; Sherman v. St. Paul, M. & M. R. Co. 30 Minn. 227; Grafton & G. R. Co. v. Foreman, 24 W. Va. 673.

In New Hampshire, Illinois, and Wisconsin the decisions are conflicting and uncertain, with the weight of authority in favor of the exclusion of such evidence. In Arkansas the decisions are uniform to the effect that such evidence should be excluded, except in Texas & St. L. R. Co. v. Kirby, 44 Ark. 106, where there is a dictum to the contrary. In Pennsylvania no case can be found which is in point, White Deer Creek Imp. Co. v. Sassaman, 67 Pa. 415, really turning on another point. The same is true of Connecticut.

With these exceptions it is believed that every State whose decisions are regarded as of importance has adopted the rule excluding evidence of this character.

See Alabama: Montgomery & W. P. R. Co. v. Varner, 19 Ala. 185; Alabama & F. R. Co.

v. Burkett, 42 Ala. 83; Hames v. Brownlee, 63 | way, 21 Barb. 331; Simons v. Monier, 29 Barb. Ala. 277; Young v. Cureton, 87 Ala. 727.

Tracey Peerage Case, 10 Clark & F. 154; Ferguson v. Hubbell, 97 N. Y. 507; Wakeman v. Van Deusen v. Young, 29 N. Y. 9; Van Wheeler & W. Mfg. Co. 2 Cent. Rep. 130, 101 N. Zandt v. Mut. Ben. L. Ins. Co. 55 N. Y. 169; Avery Y. 205; Reed v. McConnell, 2 Cent. Rep. 747, v. New York Cent. & H. R. R. Co. 121 N. Y. 101 N. Y. 270; People v. Kemmler, 119 N. Y. 31; Fish v. Dodge, 4 Denio, 311; Cook v. Brock-580, 7 L. R. A. 715; Re New York Elec. R. Co.

1891.

ROBERTS V. NEW YORK ELEVATED R. Co.

Mr. Henry H. Man, with Messrs. A. P. & W. Man, for respondent:

The evidence of expert witnesses was competent as to the diminution of fee and rental value.

supra; Evansville, 1. & C. S. L. R. Co. v. Fitz- [ the lots remained vacant until 1881. In the meantime the plaintiff filled them in, and Before filling in, the premises patrick, 10 Ind. 120. graded them. formed a portion of a marsh or swamp over which the tide ebbed and flowed. In 1881 the plaintiff sold these lots under a contract for $40,000, and the purchaser commenced the Clark v. Baird, 9 N. Y. 183; People v. Mc-erection thereon of the present buildings, five Carthy, 3 Cent. Rep. 833, 102 N. Y. 639; in number, four of which front on Third AveKrumm v. Beach, 96 N. Y. 407; Rochester & S. nue and the fifth on Ninety-ninth Street, each R. Co. v. Budlong, 10 How. Pr. 289; Re Roch-house being four stories high, constructed of ester, 40 Hun, 588; Kenkele v. Manhattan R. brick with brown-stone trimmings. The buildCo. 55 Hun, 398; Vandenburgh v. Boston & A. ings are about forty-seven feet front elevation R. Co. 21 N. Y. Week. Dig. 474; Hine v. New and sixty-five feet deep, and cost about $11,000 York Elev. R. Co. 36 Hun, 293; Reed v. Rome, each. The purchaser had them substantially W. & 0. R. Co. 48 Hun, 231; Shaw v. Charles- inclosed and the plastering nearly completed town, 2 Gray, 107; Shattuck v. Stoneham Branch in the spring of 1883, when the plaintiff foreR. Co. 6 Allen, 116; Swan v. Middlesex County, closed his liens thereon and took them from 101 Mass. 173; Snow v. Boston & M. R. Co. 65 him, and completed them, so that they were Me. 230; White Deer Creek Imp. Co. v. Sassaman, ready for occupancy in the fall of the year 67 Pa. 415; Carter v. Thurston, 58 N. H. 104; 1883. Since the month of October, 1883, the Sigafoos v. Minneapolis, L. & M. R. Co. 36 Am. buildings have been leased to tenants, and & Eng. R. R. Cas. 675; Portland & R. R. Co. the rents actually collected from the Third v. Deering, 78 Me. 61, 23 Am. & Eng. R. R. Avenue buildings from January 1, 1884, to Cas. 51; Yost v. Conry, 92 Ind. 469; Galena & January 1, 1889, have been from one house S. W. R. Co. v. Haslam, 73 Ill. 494; Keiths- and lot, $7,053; from the second, $6,129.11; burg & E. R. Co. v. Henry, 79 Ill. 290; Chi- from the third, $7,554.50; and from the fourth, cago v. McDonough, 112 III. 85; Colvill v. St. $7,541.66. The defendants' railroad was conPaul &C. R. Co. 19 Minn. 283; Sherman v. structed in Third Avenue in front of plaintiff's St. Paul, M. & M. R. Co. 30 Minn. 227; Leh-lots in the year 1878, and was put in operation micke v. St. Paul, S. & T. F. R. Co. 19 Minn. 464; Snyder v. Western U. R. Co. 25 Wis. 60; Telephone Teleg. Co. v. Forke, 2 Tex. C. C. 365; Texas & St. L. R. Co. v. Kirby, 44 Ark. 103; Grafton & G. R. Co. v. Foreman, 24 W. Va. 673.

Peckham, J., delivered the opinion of the

court:

The principal question in this case is in regard to the admissibility of the opinions of experts in reference to the amount of damages sustained by the plaintiff by reason of injury to his easements of light, air, and access to his property in Third Avenue, in the City of New York, caused by the building and operation of the defendants' railroad. As the question is one of considerable importance, and arises in each one of this class of cases, and as the number of such cases tried and to be tried is, as we understand, very large, a critical examination of the question is called for. It will be well to have a clear view of the facts existing at the time that the questions in controversy were put to the witness, so that we may determine understandingly the precise point in is

sue.

It appears that the plaintiff, in November,
1852, became the owner in fee of the premises
in question, which consisted originally of six
lots on the east side of Third Avenue and
on the south side of Ninety-ninth Street, but
the plaintiff subsequently sold some, leaving
himself with a frontage of about 100 feet on
Third Avenue, and about 110 feet in depth.
These lots cost the plaintiff about $500 apiece
at the time he purchased them; at which time
they were vacant, and they so remained un-
til 1865, when the plaintiff leased them for
The tenant erected a house
$150 per year.
upon the corner lot, with a stable, which build-
ings were destroyed by fire about 1877, at
which time the tenant gave up his lease, and

in December of that year. The plaintiff in his
complaint alleged that the building of the rail-
road was unlawful, and that the unlawful con-
struction thereof interfered with his access to
his premises, and impaired his easement in the
street or avenue by depriving him of a large
portion of light and air, and of facility of access
to them, in the amount of $75,000, and that
by reason of the maintaining and operation
and managing of defendants' railways the value
He de-
and the use and enjoyment of his premises, he
alleged, had been depreciated and diminished
to the amount of $5,000 per annum.
manded judgment against the defendants, re-
straining them from operating their road
through Third Avenue in front of his premises,
and also from continuing the unlawful acts
set forth in his complaint; and he asked that
the damages he had sustained down to the
commencement and during the pendency of
this action be adjusted by the court, and that
he might have judgment therefor against the
defendants, and each of them, and that he
might have such other relief as should be just
and equitable. The defendants joined issue
with the plaintiff in regard to many of his
allegations, and set up that the defendants were
organized under the laws of the State of New
York, granting them the right to use the street
in question for the purpose of building their
railroad, and that they had built it and equip-
ped it, and used and operated it, under such
Acts of the Legislature, and in the most care-
ful and skillful manner in which it was pos-
sible to construct, use, and operate the same
in the street mentioned in the complaint.

Upon the trial of the action the plaintiff was a witness, and after stating the condition of the premises, and the fact that he had erected or caused to be erected buildings upon them at an expense of about $11,000 each, he said that he had offered the whole premises for sale, including the house on Ninety-ninth Street,

ors than the opinions of hired and generally of that agreed upon. Under objection the biased experts." It is the general rule that witness answered, and stated that he thought testimony should consist of facts and not opin- the damage would be $50. This court reions, and the admission of opinions forms an ex-versed the judgment on the ground that the ception to that general rule. Mr. Justice Cowen evidence had been erroneously admitted, and said, in speaking of the opinions of witnesses stated that the question called simply for the as to the then present value of real estate, that opinion of the witness as to the amount of they were barely admissible, and that to re- damage sustained by the plaintiff. Van ceive them at all was a departure from the Deusen v. Young, 29 N. Y. 9, was an action general rule of evidence, and that judges who under the Revised Statutes to recover treble preside at nisi prius sometimes have reason damages for cutting trees on a certain piece of to regret that they should in practice form an land owned by the plaintiffs who were remainexception. He referred to Rochester v. Ches- dermen subject to a life estate. A witness ter, 3 N. H. 349, 364-366, where the court re- was asked, "What, in your opinion, is the fused to receive the opinions of witnesses as to difference in value of the farm by the removal the value of land, even from those skilled in of the timber?" and also, "Would the farm be the market. They said the land must be de- worth more or less with the timber cut off?" scribed, and the jury must then judge from Davies, J., held that the questions were objecfacts. See Re Pearl Street, 19 Wend. 654. I tionable as calling for a speculative opinion refer to this, not for the purpose of throwing and not for facts, and referred to McGregor v. any doubt upon the admissibility of expert Brown, 10 N. Y. 114; and Mullin, J., said: evidence upon the question of the past or "It was unquestionably competent for the present value of real estate, where the witness witness to give his opinion as to the value of is shown to be competent to give an opinion the farm with the timber on, and its value thereon, that has been decided years ago by after it was taken off. The difference bethis court, and has been continuously ap- tween the two may be the damages, and, in proved since that time (see Clark v. Baird, 9 cases where the damages are arrived at by N. Y. 183); but I cite it for the purpose of merely subtracting one sum from another, it showing the opinion of learned judges re- may seem to be refining overmuch to refuse garding evidence of this kind when it first the witness the right to make the subtraction came into practice, and the questions thereon himself, and declare the result; for this is first came up for decision. The only inquiry what he is called on to do when asked to give here is whether this is one of those cases in his opinion as to the amount of damages." which the testimony is allowable. The learned judge was speaking of a case where the witness knew the farm in question, knew it when the timber was on it, and knew what its value then was, and, the timber having been cut off, he knew what the value of the land was with the timber thus cut off; and, in a case where the difference between the two would be the legal damages, it does not even then follow that a witness may be asked the bald 'question, "What amount of damages had the plaintiff sustained?" The reason is that the rule of damages is a question of law, and the witness upon such a question might adopt a rule of his own, and hold the defendant responsible beyond the legal meas ure. In Marcly v. Shults, 29 N. Y. 346, the court, per Denio, J., held that a witness could not be allowed to state his opinion of the amount of damages. That was in an action for damages for raising a dam so as to overflow the plaintiff's house. The learned judge said the witness could describe the character of the overflow and its effect, and then it would be for the jury to estimate the damages; that what was offered was in substance an opinion as to the amount of the damages which the plaintiff had sustained by the wrongful act of the defendant. This court, in Green v. Plank, 48 N. Y. 669, in an action of replevin for a canal boat, reversed a judgment for the plaintiff where the witness had been asked to state the damages for taking and withholding the boat during the time the defendant had it. In Ferguson v. Hubbell, supra, which was an action for damages for a fire claimed to have been negligently set, from which the plaintiff sustained damage to his land, a farmer was called as a witness for defendant, and asked the question: "What do you say as to whether it was a proper time or not to burn a fallow?"

The precise question has been decided by this court as lately as 117 N. Y. 219, and in McGean v. Manhattan R. Co. The question there asked was, "What would have been the fair rental value in the years 1879, 1880, and 1881, if the railroad had not been built?" and we decided it to be improper. It was so held because it is merely speculative, and it is speculative upon the very question and upon the only question which the court or jury is called upon to decide, and the question calls for the opinion of the witness upon that very subject. Some criticism has been made in regard to that case by the learned counsel for the plaintiff herein, and we are asked substantially to review it, and to reverse our decision therein. We have carefully considered the arguments of counsel on both sides, and have again looked through the cases decided in this court upon the subject, and we are unable to see that there has been any error in the McGean Case, but on the contrary we think it is in strict conformity with the law as heretofore laid down by this court.

I shall refer to but a few of the cases cited by the appellant herein to sustain his claim that the court below erred in admitting the question in controversy. They are all contained in his very voluminous brief upon the subject, submitted to us, and out of them the following are all that I deem it necessary to comment upon. Morehouse v. Mathers, 2 N. Y. 514, was an action brought by the plaintiff to recover damages for a breach of contract by the defendant in not feeding to the plaintiff's cattle as good hay as had been agreed upon. The plaintiff asked a witness what damage had occurred in corsequence of feeding the cattle upon the hay in question instead