#### Anna Maria Doyle, Resp’t, *v.*The Manhattan R. Co. *et al.,*App’lts.

*(New York Common Pleas, General Term,*

*Filed February 3, 1890.)*

Railroads—Damages—Evidence.

In an action against an elevated railroad for damages arising from the construction and operation of such road, evidence to show that the business portions of the property in question are more valuable in consequence of the existence of the road is admissible.

Appeal from judgment awarding to plaintiff the sum of $12,-000 damages and enjoining the maintenance and operation of defendants' railroad in front of her premises unless they pay to her the sum of $16,000 within sixty days.

*Edward S. Rapallo*and *Brainard Tolles,*for app’lts; *W. G. Peckham,*for resp’t.

Larremore, Ch. J.

There is one group of exceptions in this case which seem to render a reversal of the judgment inevitable. A number of witnesses who professed to be familiar with general business on the Sixth avenue were asked by defendants’ counsel the question, “ What has been the effect of the elevated railroad upon business in Sixth avenue ?” This question was followed by others of similar import, such as:

> “ What has been the course of business in that vicinity, since the elevated railroad was built in that vicinity?”

> “State whether, since the elevated railroad has been built in that street, business has increased over what it was before the elevated ?”

> “ Has there been a change in Sixth avenue in regard to the amount and character of business done there since the elevated railroad, from what there was before th¿ road ?’’

All of these questions, and all evidence bearing upon the course of trade, and any possible increase of business value of the property since the building of the road, were excluded. We think this was error and that it may have resulted in very substantial injustice. In *Drucker*v. *Elevated R. R.,*106 N. Y., 157; 8 N. Y. State Rep., 599, the court of appeals had before it the converse of *140the present question. Evidence had been admitted tending to show that since the erection of the elevated road trade and business has fallen off in Division street.

It was claimed that this was error, but the court of last resort held that proof of the general deterioration of a neighborhood for business purposes was a proper factor to be considered in determining the damage to any individual’s property.

“ But to measure and appreciate that individual loss, the nature and extent of the general injury was necessarily to be considered. To ascertain how much the plaintiff was injured by the impairment of his easement required a survey of the general facts and a deduction from them of the particulars and special damage to be estimated.”

If this principle is to be applied against the elevated road, common fairness requires that the road should be given the opportunity to invoke the same doctrine in its favor if it can. If defendants produce witnesses who will testify that since the building of the road business has increased, and that the business portions of the property in question are more valuable in consequence of the existence of the road, such evidence should be heard and given whatever weight the court considers it entitled to. The court or jury might not believe such witnesses, and, even if their testimony were accepted as true, the damage to the residential portions of the building might more than neutralize any increase of rental value in the shops on the ground floor. But the fact sought to be proved was one of the circumstances to be considered, and was something which, if the court credited it, would have borne very materially upon the general question of the amount of damages to the building.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Bookstaver and Bischoff, JJ., concur.