#### Francis C. Lawrence, Resp’t, *v.*The Manhattan Elevated R. Co. *et al.,*App’lts.

*(New York Common Pleas, General Term,*

*Filed February 3, 1890.)*

Railroad—Damages—Evidence.

In action for damages for deterioration of property by the operation of an elevated railroad in front of the same, evidence of private offers for the property is incompetent on the question of its value.

Appeal from judgment in favor of plaintiff for damages to the fee and rental value of his house, No. 80 Amity street, New York, caused by the operation of defendant’s railroad.

*Edward S. Rapallo*and *Brainard Tolles,*for app’lts; *John A. Weeks, Jr.,*for resp’t.

Larremore, Ch. J.

The printed ease 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 *7*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,*34 Hun, 167, Judge Follett used the following language of which we approve :

> *“ It*has been intimated in some eases 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 whether 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 purpose of a cause, and, the bad faith in which 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 public auction, and also, upon á different footing from bids made at auction sales. *Young*v. *Atwood,*5 Hun, 234.”

*139In our judgment, the reasons given by Judge Follett for holding evidence of private offers incompetent 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; *Wood*v. *Fireman's Ins. Co.,*126 id., 316; *Fowler*v. *County Commissioners, etc.,*6 Allen, 92; *Watson*v. *Milwaukee, etc., R. Co.,*57 Wis., 332; *Louisville, etc., R. Co.*v. *Ryan,*64 Miss., 399; *St. Joseph, etc., R. Co.*v. *Orr,*8 Kansas, 419.

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

Bookstaver and Bischoff, JJ., concur.