McGean v. Manhattan Ry. Co.
| Decision Date | 26 November 1889 |
| Citation | 22 N.E. 957,117 N.Y. 219 |
| Parties | McGEAN v. MANHATTAN RY. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from superior court of New York city, general term.
Action by James H. McGean, as executor of Delia Powers, deceased, against the Manhattan Railway Company. From a judgment of the general term, affirming a judgment of the trial term entered on a verdict for $2,500, defendant appeals.
Davies & Rapallo, (Edward S. Rapallo and Brainard Tolles, of counsel,) for appellant.
Roger Foster, for respondent.
This action was brought to recover damages for injuries occasioned to the easements of light, air, and access pertaining to the property of the plaintiff's testatrix for six years prior to 1887, the time of the commencement of the suit, by the erection, operation, and maintenance of an elevated railway by the defendant in Division street, in the city of New York. The property consisted of a lot and building on that street, 12 1/2 feet wide, and which for a period of 20 years had been occupied as a millinery store.
The only material question raised by the appellant on this appeal is whether the opinions of witnesses were admissible as to ‘what would have been the fair rental value of this property in the years 1879, 1880, and 1887, if the railroad had not been built.’ Similar questions were put to two witnesses on the part of the plaintiff, and were allowed to be answered, by the court. It may be said, with regard to the evidence called for by the questions, that it did not purport to cover the whole period for which damage was claimed, but included but a small part of one year, and had therefore but a slight bearing on the issue in controversy. It is further to be observed that the evidence was not specifically objected to upon the ground that the opinions of witnesses were inadmissible on the subject, but generally, as being incompetent, irrelevant, hypothetical, and the witness not competent to give an opinion. The objection seemed to imply that opinions were competenton the subject. The trial seems to have been conducted on both sides, and more particularly on that of the defendant, upon the theory that opinions were admissible as to rental value of the premises, and causes which affected it. The evidence on the part of the defendant was almost exclusively of this character; and it seems ungracious in it now to insist upon a rule which it systematically violated during the course of the trial. Assuming, however, that the objection was sufficiently taken, we are of the opinion that the evidence called for was inadmissible on the question in controversy. The opinions of witnesses as to the causes which occasioned the decrease of rental value, as well as to the amount of damages done thereby, were clearly improper. As was said by Judge ALLEN in Teerpenning v. Insurance Co., 43 N. Y. 279, In Marcly v. Shults, 29 N. Y. 346, quite a similar case, Judge DENIO said:
But, conceding the inadmissibility of the evidence given, it does not follow that the judgment should for that...
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