James P. Kernochan, Individually and as Executor, et al., Respondents, v. The New York Elevated Railroad Company et al., Appellants

James P. Kernochan, Individually and as Executor, et al., Respondents, v. The New York Elevated Railroad Company et al., Appellants. In an action by an abutting owner against an elevated railroad company operating its road in a city street, the opinion of a witness as to what would have been the value of the property if the road had not been built is incompetent. Kernochan v. N. Y. E. R. Co. (25 J. & S. 434), reversed. (Argued October 19, 1891; decided December 1, 1891.) Appeal from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made January 6, 1890, which affirmed a judgment in favor of plaintiff, entered upon a decision of the court on trial at Special Term. This action was brought by an owner of premises abutting on a street in the city of New York through which defendant had constructed and maintained an elevated railroad, to restrain them from maintaining and operating the same, and to recover damages. The only question discussed in the opinion was as to whether the opinion of witness was competent evidence as to what the value of plaintiff’s premises would have been if the defendant’s road had not been built. The court decided that the testimony was incompetent on authority of Roberts v. N. Y. El. R. R. Co. (128 N. Y. 455). J. O. Thomson for appellants. C. Willett Van West for respondents. [MAJORITY — Potteb, J.,] Potteb, J., reads for reversal and new trial. All concur. Judgment reversed.