#### Edith K. Roosevelt *et al.,*Resp’ts, *v.*The New York Elevated R. R. Co. *et al.,*App’lts.

*(New York Superior Court, General Term,*

*Filed February 6, 1890.)*

Evidence—Opinions—Elevated bailboads.

Questions put to a competent witness in an action to enjoin the operation of an elevated railroad as to what, in his opinion, the value of the adjoining real estate in question would be if there were no elevated railroad in front of it, arc not objectionable as immaterial or incompetent, or on the ground that the question is hypothetical; and such specific objections do not apprise the court that defendant means to object on the ground that the question calls for what the judge is to determine on the other testimony.

Appeal by defendants from judgment entered upon findings, etc., at special term.

*Davies & Bapallo,*for app’lts; 6r. *Willett Van Ness,*for resp’ts.

Sedgwick, Ch. J.

This was an action to enjoin the defendants from maintaining and operating their railway in front of plaintiffs’ premises and for damages.

The only exceptions to be considered are those taken to the admission of the following questions: “ What, in your opinion, would be the rental value of those premises, No. 97 Pearl street, to-day, if there were no elevated railroad in front of them ? and what, in your opinion, would be value of those premises if there were no elevated railroad in front of them ? ”

Before the decision of *McGean*v. *Manhattan R. Co.,*in the court of appeals, it was generally supposed that such questions were admissible, under the general rule given by Greenleaf, § 440 *a,*“ as to the marketable condition and value of property * **** opinions are received.” Section 440 gives a pertinent case: “A secretary of a fire insurance company accustomed to examine buildings with reference to the insurance of them, and who as county commissioner had frequently estimated damages occasioned by the laying out of railroads and highways, has been held competent to testify his opinion as to the effect of laying a railroad within a certain distance of a building upon the value of the rent,” etc.

In *Clark*v. *Baird,*9 N. Y., 183, in an action for false representations in defendant’s saying that land bought of him by the plaintiff extended to a described distance, it was held that the testimony was valid of a witness who swore that the land was worth $1,000, if it extended to the race and trees. The strip *267taken, off would reduce it one-fourth. This testimony had been objected to on the ground that the amount of damages cannot be ascertained by the opinion of the witness. Judge Johnson examined many cases and among them cases that had maintained that it was a sufficient objection to such testimony that the thing testified to was a matter that should be determined by the jury or judge. The rule was announced that the opinion of a witness who has seen the thing in question, and is acquainted with similar things, is not incompetent to be submitted to a jury.

Prof. Chase, in his edition of Stephen’s Dig. Ev., in No. 2, p. 102, gives an important list of cases on this subject.

In the case of *McGean, supra,*the court of appeals has held that specific objections, like those taken in this case to like questions, did not apprise the court that defendant meant to object on the ground that the question called for what the judge was to determine upon the other testimony in the case. The objections taken were that the question called for immaterial and incompetent testimony; that the witness was not competent to give an opinion, and that the question was hypothetical. The questions were not objectionable, therefore, on any ground taken at the trial

The judgment should be affirmed, with costs.

Freedman and Ingraham, JJ., concur.