Charles Remsen and William Manice, as Executors, etc., of William Remsen, Deceased, and Others, Respondents, v. The Metropolitan Elevated Railway Company and The Manhattan Railway Company, Appellants

Charles Remsen and William Manice, as Executors, etc., of William Remsen, Deceased, and Others, Respondents, v. The Metropolitan Elevated Railway Company and The Manhattan Railway Company, Appellants. Elevated railroads — an expert may testify generally that therre would have been a rise in values had the elevated road not been built — an error in the question cured by the answei'—admission in evidence of a memorandum testified from. In an action brought by an abutting property owner against the elevated railroads of the city of New York to restrain the operation of the roads and for damages, an expert witness was asked: “In your judgment, suppose there had been no elevated railroad on Sixth avenue, would there have been a. like upward rise on Sixth avenue ? ” to which the witness replied that the property on Sixth avenue would have increased in value. Held, that, as the witness did not attempt to specify the amount of such increase, nor to specify the amount of such increase in comparison with the adjoining property, the testimony was proper. The court will not reverse a judgment because of the admission of an incompetent question, when the answer to the question makes the evidence entirely competent. Where, upon the trial of such an action, the counsel for the defendants calls the attention of the plaintiff’s expert to what purport to be certain sales of property in’the vicinity of the plaintiff’s property, and during such cross-examination the witness produces a paper to refresh his recollection, which is subsequently used by the defendants’ counsel in conducting his cross-examination, it is. proper for the court to receive the paper in evidence, not as proof of each individual transaction stated therein, but that the court may have before it the instrument as to which the witness was cross-examined and from which he testified. Appeal by the defendants, The Metropolitan Elevated Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiffs,, entered in the office of the clerk of the county of New York on the 31st day of December, 1895, upon the decision of the court rendered after a trial at the New York Special Term. This action was brought for ah injunction restraining the defendants from maintaining, continuing or operating then’ elevated railroad in front of the plaintiffs’ premises, and to compel them to take down and remove the same, and. for the recovery of damages. Julien T. Davies, and Brainard, Tolles, for the appellants. W. G, Peckham, for the respondents. [MAJORITY — Ingraham, J.:] Ingraham, J.: We have examined with care the testimony in the light of the defendants’ criticism, and it is sufficient to say that we think the findings of the court were sustained hy the evidence. While, it is true that in this ease there was a sharp conflict in the testimony of the witnesses produced hy the plaintiffs and by the defendants as to the values, both rental and fee, of this property during the period from 1873 down to the present time; and while much of the testimony given on both sides is unsatisfactory and contradictory, we think that the trial judge, having the witnesses before him and hearing their testimony, was in a position to judge of its effect and of the weight to be accorded to it; and that there ivas sufficient to sustain the findings. It is not necessary that we should go over the testimony stating the facts testified to, which, we think, justified the findings of the court below. It is sufficient to say that an examination of the whole testimony has satisfied us that such findings are sustained by the evidence. There are several objections to testimony relied on by the counsel for the defendants; but two of them require notice. The plaintiffs were allowed to ask an expert witness, called by them, the following question: “ Q. In your judgment, suppose there had been no elevated railroad on Sixth avenue, would there have been a like upward rise on Sixth avenue ? ” The witness had testified before this time as to increases in value of property on adjoining streets and avenues, and had been asked generally his opinion as to the increase of rental and fee values of such property. It may be that that question is objectionable in form, although it would appear that it was within the ruling of the court in the case of Hunter v. Manhattan Railway. Co. (141 N. Y. 287). In that case a ivitness was allowed to testify as to whether or not the existence of this elevated railroad would affect the rental value of the property, in front of which it was constructed, favorably or unfavorably, and it was held that, while the amount of damage caused hy the construction and maintenance of the road could not be testified to, the fact that damage was caused, or that the value of property was affected unfavorably, was competent evidence for an expert witness. This question would seem to be within this ruling. The question was not, therefore, subject to the objections specified by counsel for the defendants; but however objectionable the question may have been, the answer of the witness rendered any objection to it valueless. The answer was simply that the property on Sixth avenue would have increased in value,, without attempting to specify the amount of such increase, and without attempting to specify the amount of the increase in comparison with adjoining property. The answer thus brought the evidence expressly within the rule stated in the Hunter Case (supra). We would not be justified in reversing the judgment because of an incompetent question when- the answer to the question made the evidence entirely competent. The only other objection to the testimony that seems to require notice is the objection to the admitting in evidence of the plaintiffs’ expert’s transcripts of recorded sales, but we think that, under the circumstances, there was no error in receiving such transcripts in evidence. Upon cross-examination of the plaintiffs’ expert the counsel for the defendants called the witness’ attention to what purported to be sales of property in this vicinity, and, during the cross-examination, the witness produced a paper which he used for the purpose of refreshing his recollection, and that paper was subsequently used by counsel for the defendants in his cross-examination of the witness.. After the cross-examination was completed this paper which counsel for the defendants had used in his cross-examination of the witness, which he. himself had inspected, and from which he had questioned the witness, was competent evidence as a part of the examination of the witness, and to show the source of the information of the witness, and as an explanation of his testimony. It was not introduced as proving each individual transaction therein recorded. It was proper for the court to have before it the instrument upon which the witness had been interrogated and from which he had made his answers; and it is quite clear that in admitting it the court considered it in this aspect only, and did not treat it as independent evidence of each separate transaction apart from the. witness’ testimony as to such transaction. The other objections to the testimony do not, we think, require notice; and after a review of the whole case we are satisfied that the award was moderate, and that there was no legal error committed. We think, however, under the circumstance of the case, that the interest allowed from annual rents, amounting to the sum of $8,190.98, should be deducted from the amount of the judgment, and that the judgment, with this modification, should be affirmed, without costs. Yan Bkíjnt, P. J., Williams, Patterson and O’Brien, JJ., concurred. Judgment modified as directed in opinion, and as modified, affirmed, without costs.