Jamieson v. Kings County Elevated Railway Co.

41 N.E. 693, 147 N.Y. 322, 69 N.Y. St. Rep. 688, 1 E.H. Smith 322, 1895 N.Y. LEXIS 951

• Court: New York Court of Appeals
• Decided: October 29, 1895
• Status: Published

Opinion

Finch, J.

I do not think the fact which is explicitly found, that the construction and operation of the defendant’s elevated road has injured the fee value of plaintiff’s property only to the extent of one dollar, necessarily defeats the equitable right to an injunction, and so defeats the action. It is further found that the rental value has depreciated to a substantial extent, and for which damages were awarded. While it is true that usually the fee value rises or falls in proportion to the changes of rental value, that is not always or necessarily true, and cases are possible in which one remains stationary while the other changes. That is found to be the fact in the present case, and I think that proof of a substantial and continuing injury to the rental value will sustain the equitable action. The wrong done is in the nature of a continuing trespass, involving a multiplicity of actions. The appellant’s suggestion is that the finding of an unchanged fee value raises a presumption that there will be no loss of rental value in -the future, and so no occasion for further suits. To indulge in such a presumption would require us to shut our eyes to the lesson of the jiast taught by the proofs in respect to this property. I think the action was maintainable and the remedy by injunction a proper one.

But I think, also, that there was error in the admission of evidence which we cannot disregard. The plaintiff sought to prove the evil effect of the road in diminishing values by the process of calling the owners of property in the vicinity and proving, in each case, what the particular premises owned by the witness rented for before the road was built and what thereafter. There were objections and exceptions. Such a process is not permissible. ^Each piece of evidence raised a collateral issu& (Gouge v. Roberts, 53 N. Y. 619), and left the court to try a dozen issues over as many separate parcels of property. (jWe have held such a mode of proof to be inadmissible. (Hun tington v. Attrill, 118 N. Y. 365; In re Thompson, 127 N. Y. 463.) j The elevated railroad cases fin this court, to which the plaintiff refers us, j give no warrant for such a mode of proof, but indicate that the general course and currrent of values must be shown by persons competent to speak, leaving to a cross-examination any inquiry into specific instances if such be deemed essential] Almost all the evidence of depreciation was of the erroneous character, and we cannot say that it may not have worked harm to ■ the defendant.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concur.

Judgment reversed;