#### William P. Ross, Resp’t, *v.*The Manhattan Elevated R. R. Co. *et*al., App’lts.

*(New York Superior Court, General Term,*

*Filed January 6, 1890.)*

1. Railroads—Easements.

By the opening of a street under chap. 86, Laws of 1813, an easement of light, air and access is created on behalf of abutting owners, and by the conveyance of such abutting property such easement vests in the grantee. Possession by the grantee of such easement, under such conveyance, is sufficient to sustain an action of trespass for its appropriation.

3. Same—Evidence.

After a lengthy cross-examination as to notice of the construction of the road, and that he had used it as a means of travel, the court refused to allow plaintiff to be asked the question: “ And during all this time you were reserving your objections ? ” *Held,*no error; that it was immaterial and irrelevant, there being no proof to show an estoppel.

3. Same.

A witness, in testifying to the value of the property, stated that he nod submitted an offer for a certain sum to plaintiff. *Held, that*as this was simply a remark of the witness as a basis for forming his judgment, it was not incompetent in the connection in which it was given, and a refusal to strike it out was net err

Appeal from judgme entered on decision of the court at special term.

*B. Tolies,*for app’lts; *K M. Felt,*for resp’t.

Ingraham, J.

An examination of the evidence has satisfied us that the amount awarded by the court as the damages sustained by the plaintiff caused by the trespass, and the amount fixed by the court as the value of the property in the street appropriated by the defendant, were not excessive.

We are also of the opinion that the finding “ that attached to the plaintiff’s premises, above described as a part thereof, was an easement of light, air and access over said Fifty-third street, and appurtenances thereto, in front of and adjoining said premises, of which easement the plaintiff has been dispossessed since July 16, 1868,” was sustained by the evidence.

It was stipulated that Fifty-third street in front of the plaintiff’s premises was opened and laid out as a public street or highway in the year 1838, under and by virtue of chapter 86, Laws of 1813. There was offered in evidence a conveyance of the premises dated July 10, 1868, and it appeared that the plaintiff had owned the premises and been in possession thereof continuously from that date, which was prior to the erection of the elevated railroad.

It thus appears that by the opening of the street, and its appropriation as a public street under the act of 1813, that a contract was created between the public and the abutting owners by which the street was to be kept open as a public street forever, and that, thereby an easement was created appurtenant to the abutting-premises, which enured to the benefit of such abutting owners.

By the conveyance to the plaintiff of such abutting property such easement vested in him, and it appeared by the evidence *518that he entered into possession thereof and was enjoying such easement when the same was appropriated by defendant for the purpose of its railroad, and it is clear that such possession was sufficient to sustain an action for trespass.

The only remaining questions that require examination are raised by exceptions taken by defendant to the admission of testimony and to the denial of a motion to strike out part of an answer.

After a lengthy cross-examination of the plaintiff to show that he had notice of the construction of the railroad and took no proceedings against the company, and that he had used the defendant’s road as a means of travel between his residence and his place of business, counsel for defendant asked the witness the following question: “ And during all this time you were reserving your objections?” when the court interposed and said, “You have gone far enough on that point You can ask no more questions on these points,” to which the counsel for the defendant duly excepted.

It is clear that the question was entirely irrelevant and immaterial. The operation of the plaintiff’s mind at that time had nothing to do with any question before the court. The examination of the witness had been exhausted as to facts, and if counsel for defendant had desired to ask any further question, he should have asked the question and taken a ruling as to its admissibility.

There was not the slightest proof offered which tended to show that the defendant had relied upon the acquiesence of the plaintiff in building its road, or that the plaintiff was .in any way estopped from maintaining this action.

The extent to which such a cross-examination should be allowed is largely in the discretion of the court, and such discretion was properly exercised in refusing to allow questions to be put which were absolutely immaterial; which did not tend to prove any issue presented by the pleadings and which could not be asked for any other purpose except to waste time.

The other exception relied on by defendant is to the denial of a motion to strike out a part of the answer to a question put to a real estate expert as to what was the market value of plaintiff’s premises at any time since 1888 and prior to the construction of the defendant’s structure.

The witness answered that that property was valued at one time as high as $80,000, and he had submitted an offer to Mr. Ross of $30,000. Plaintiff moved to strike out the portion of the answer stating that he had submitted an offer of $80,000, which motion was denied.

That this testimony was incompetent to prove a value is clear, but the evidence as to the value of the property was competent, and this was simply a remark of the witness as a basis for forming his judgment. While it would not have been error to have excluded the testimony, we do not think that it was incompetent in the connection in which it was given or that the testimony in any way affected the result

On the whole case, we think that there are no exceptions that *519require a reversal of the judgment and it should therefore be -affirmed, with costs.

Sedgwick, Gh. J., concurs.