#### Francis C. Lawrence, Respondent, *against*The Metropolitan Elevated Railway Company *et al.,*Appellants.

(Decided February 3d, 1890.)

In an action to recover damages for the construction and maintenance of an elevated road in the street in front of plaintiff’s premises, the admission of evidence of one who had charge of renting the property prior to the construction of the road, but was not an agent to sell or receive offers for sale, as to an offer which he had received for the sale of the property, is error, and is ground for reversal where such offer was much greater than the admitted value of the premises after the construction of the road; although the trial was by the court.

Appeal from a judgment of this court entered upon the decision of the judge on a trial by the court without a jury.

The action was'brought to obtain an injunction to restrain the continued maintenance and operation of defendants’ elevated railway in front of plaintiff’s premises, formerly known as 80 Amity Street in the City of New York, and to recover damages for such maintenance and operation. The action was tried by the court at the Equity Term without a jury, and damages were awarded plaintiff in the sum of $2,150.

*Edward S. Rapallo*and *Brainard*Tolles, for appellants.

*John A. Weekes, Jr.,*for respondent.

*503Larremore, Ch. J.

The printed case discloses one error which is fatal to the judgment appealed from. A witness, who is a real estate agent, and, as such, has had charge of the renting of the premises to which this action relates for many years, was allowed against defendants’ objection to testify as follows : “ Q. Did you receive in 1872 an offer of purchase of 80 Amity Street? A. After the property fell into my hands the property next door was bought; a man came to my office half a dozen times, he sent me letters and finally came to see me personally, wanting to buy the property and very anxious to buy. I did receive an offer of $16,500. Then I offered for $17,000, and then they asked for $16,000.”

There is evidence that the premises at present are worth but $15,000, and that immediately after the building of the elevated road they were worth but $13,000. The testimony above quoted therefore, bore very cogently upon the question of deterioration in value of the property, and although the trial was by the court and not before a jury, it would be impossible for us to say that the finding and assessment of damages was not in some degree influenced by it.

In *Kellar*v. *Paine*(3.4 Hun 167), Judge FoLLETTused the following language, of which we approve: “ It has been intimated in some cases' that offers are some evidence of value. But it is a class of evidence which it is much safer to reject than to receive. Its value depends upon too many circumstances. If evidence of offers is received, it will be important to know whether the offer was made in good faith, by a man of good judgment acquainted with the value of the article and of sufficient ability to pay; also, whether the offer was cash, for credit, in exchange, and Avhether made with reference to the market value of the article, or to supply a particular need or to gratify a fancy. Private offers can be multiplied to any extent for the purposes of a cause, and the bad faith in Avhich they were made would be difficult to prove. The reception of evidence of private offers to sell or purchase stands upon an entirely different footing from evidence of actual sales between individuals or by *504public auction, and also upon a different footing from bids made at auction sales” *(Young*v. Atwood, 5 Hun 234).

In our judgment, the reasons given by Judge Follett for holding evidence of private offers inco'mpetent upon the question of value are conclusive, and it is -unnecessary for us to attempt to add anything to what he has said. It is proper, however, to observe that this question has been raised in the courts of several sister states, and that there is a very general concurrence in the conclusion we have reached *(Whitney*v. *Thacher,*117 Mass. 523; *Woods v. Fireman's Ins. Co.,*126 Mass. *316; Fowler*v. *County*Commissioners, 6 Allen 92; *Watson*v. *Milwaukee, &c., R. Co.,*57 Wis. 332 ; *Louisville, &c., R. Co.*v. *Ryan,*64 Miss. 399; *St. Joseph, &c., R. Co.*v. *Orr,*8 Kans. 419).

The judgment appealed from should be reversed, with costs to appellant to abide the event.

Bookstaver and Bischoff, JJ., concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.