#### James Mooney, Respondent, *against*The New York Elevated Railroad Company *et al.,*Appellants.

(Decided April 7th, 1890.)

Plaintiff owned a lot running through from a street on which defendant’s elevated railroad was constructed to another parallel street. On both ends of the lot were buildings fronting on their respective streets and wholly disconnected. Held, in an action for damages from the construc*146tion and operation of the road, that the allowance of damages for the rear structure was erroneous.

Where a decrease in rental value of premises is due in part to a change in the business character of the neighborhood, it is error to allow, as damages to such premises from the construction and operation of an elevated railroad, the whole difference in value before and after the construction of the road.

Defendants in such an action cannot object to the refusal of the court to allow evidence of the decline in rents of the neighboring property, where evidence of the same character offered by plaintiff has been excluded on defendants’ objection.

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

The action was brought to recover for damages to plaintiff’s premises, No. 399 Greenwich Street in the City of New York, from the construction and operation by defendants, in that street in front of the premises, of their elevated railway, and to restrain the maintenance and operation of the railway. Judgment was rendered for plaintiff for $6,054.22 damages, and granting an injunction against the further maintenance and operation of defendants’ railroad in front of the premises, unless defendants, within 30 days, should pay or tender to plaintiff the sum of $7,000. From this judgment defendants appealed.

*Davies Bapallo,*for appellants.

*Charles Gribson Bennett,*for respondent.

J. F. Daly, J.

The judgment should be reversed and a new trial ordered, because the court allowed damages for a rear building, which was not shown to be affected by. the operation of the elevated railway, or the maintenance of its structure; and also because the award for damages and for injury to the fee value was excessive.

The plaintiff’s premises are situated on the northeast corner of Greenwich and Beach Streets. The lot is 25 feet in width on Greenwich Street and 100 feet in depth on Beach Street, and is covered by two buildings, one of which is built on the *147rear of the lot oh Beach Street, is 25 by 50 feet, is wholly unconnected with the building fronting on Greenwich Street, and has its entrance and receives its light and air from Beach Street. The elevated railroad structure does not extend in front of this rear building.

The court did not distinguish between the front and rear buildings in its findings of the effect of the elevated structure aiid the operation of the road upon the plaintiff’s premises, and admitted upon the trial, and against the objection of defendants, evidence of the, rents received from such rear building. It is also apparent from the description of the premises, in the findings, which were found to be affected by the structure and operation of the road, that the rear building was included in the estimate of damage caused by the defendants.

It also appeared in evidence that the rental value of the premises was unfavorably affected by “other causes than the construction, maintenance, and operation of the elevated road, yet the court, allowed the plaintiff the whole difference, as testified to by plaintiff’s witnesses, between the values of the premises before and after the construction of the road. The evidence shows that part of the decrease in rents, after the road went into operation, must have been due to changes in the business character of the neighborhood. Up to the time the elevated roads were built, or until about 1880, market wagons congregated in this part of Greenwich Street, and a larger trade was attracted to the stores in the neighborhood in consequence. Since 1880 the marketmen have gone up to the new market at “ Fort Gansevoort,” and the trade has followed them. This circumstance does not appear to have been given due weight in determining the actual damage occasioned by the elevated roads.

There seems also to be a good exception to a refusal to strike out hearsay testimony of a witness for plaintiff. The witness, W. Myers, a real-estate agent and expert, testified as to Greenwich Street property: “ I cannot rent it: not one out of twenty who comes there will take Greenwich Street on account of the elevated road. That is what they told me.” *148Defendants moved to strike out the words “ on account of the elevated road,” which should have been granted.

The refusal of the court to allow evidence in behalf of defendants of the decline in rents of neighboring property, would have been error, had not defendants previously objected to plaintiff’s showing the course of values in the immediate neighborhood. Their objection was that the evidence was “ incompetent, irrelevant, immaterial, not within the issues, and not the proper measure of damages.” The objection was sustained, and such evidence on plaintiff’s behalf having been excluded on their objection, they could not be permitted after-wards to offer evidence of the same character. For the other errors, however, the judgment should be reversed and a new trial ordered, with costs to abide event.

Bischobb, J., concurred.

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