(77 Hun, 139.)

#### PRATT v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, General Term, Fifth Department.

April 12, 1894.)

1. Trial—Objections to Evidence.

An objection to evidence after the question has been answered is sufficient, where the witness answered before an objection could be interposed-

2. Same—Sufficiency of Objection.

An objection to evidence “on the ground that it is incompetent, improper, and speculative, and not the proper method of proving damages,” is sufficient to raise the objection that the evidence was not admissible because it was the opinion of the witness.

*4643. Eminent Domain—Opinion Evidence.

In an action for damages caused by the construction of a railroad in a street on which plaintiff’s property abuts, the opinion of the witness as to what the rental value of the property would be, were the railroad absent, is not admissible.

Appeal from special term,- Erie county.

Action by Pascal P. Pratt against the New York Central & Hudson River Railroad Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

James F. Gluck, for appellant.

Sherman S. Rogers, for respondent.

LEWIS, J.

The plaintiff is the owner of a lot 216 feet front, abutting on the southerly side of a street in the city of Buffalo, known as the “Terrace.” He is also the owner, as tenant in common, of an undivided one-half of the fee of the street in front of his said lot. The defendant, in the year 1879, wrongfully entered upon said street, and constructed therein, in front of plaintiff’s said premises, two railroad tracks, and has ever since maintained such tracks and operated trains thereon. Plaintiff brought this action against the defendant, and claimed in his complaint that, by reason of the presence of said tracks and the operation of trains thereon, access and egress to and from his said premises had been interfered with and rendered hazardous, and that the rental value thereof had been thereby depreciated and greatly injured, to his damage. He recovered a verdict of $12,000.

The defendant claims that the judgment should be reversed because of errors committed upon the trial. The plaintiff was called as a witness in his own behalf, and testified to the rental value of his property with the railroad in the street. He was then asked the following question: “What, in your judgment, Mr. Pratt, would be the rental value of that property during the years from 1885 to 1891 with the railroad absent?” Mr. Gluck: “That I object to, on the ground that it is incompetent, improper, and speculative, and not the proper method of proving damages.” The question was not then answered. The witness went on to give a review of the changes in the location of the retail business in the city, showing that it had, during the time the defendant had maintained said tracks, moved up town, and, in a measure, away from the plaintiff’s premises. The question was repeated, and before any objection was interposed the witness answered: “Ten thousand dollars.” Counsel for the defendant immediately thereafter said: “I object to that on the ground that it is incompetent and improper; that the proper foundation has not been laid for the asking of that question; that it is speculative, and not the proper method of proving damages.” The objection was overruled, and the defendant excepted. The court thereupon asked the question: “Ten thousand dollars per year?” The witness answered: Wes, sir.” The witness *465evidently answered the question propounded by the plaintiff’s counsel before the defendant’s counsel had an opportunity to interpose his objection, and we think it must be held that the objection was timely made. It is the contention of the defendant’s counsel that the question was improper, as it called for the opinion of the witness; and that presents one of the questions for our decision. The competency of such evidence has been much discussed of late by the court of appeals. McGean v. Railway Co., 117 N. Y. 219, 22 N. E. 957, was an action brought to recover damages for injuries occasioned to the easements of air and light and access to the property of the plaintiff by the erection and maintenance of an elevated railroad in a street of the city of New York. The court held that opinions of witnesses as to the causes which occasioned the decrease of rental value, as well as the amount of damages done thereby, were improper; that' witnesses must state facts, and' not draw conclusions or give opinions. The question was again before the court of appeals in Roberts v. Railroad Co., 128 N. Y. 455, 28 N. E. 486. The prevailing opinion elaborately reviews the authorities upon the question of the admissibility of such evidence, and it was held to be inadmissible; and the doctrine of McGean v. Railroad Co., supra, was commented upon, and approved as laying down the correct rule. The court of appeals has since steadily adhered to this rule of evidence, and has reversed numerous judgments because of the admission of such evidence. Our attention is called to the case of Rumsey v. Railroad Co., 133 N. Y. 79, 30 N. E. 654, as laying down a different rule. While some remarks made in the opinion of the court might be construed as conflicting with the cases heretofore cited, we do not understand that this precise question was before the court for decision, and we assume they did not intend to disturb the doctrine so carefully and deliberately laid down in the Roberts Case. This rule was again announced in Hunter v. Railway Co., 141 N. Y. 281, 36 N. E. 400, and seems to be so well settled as to be no longer open for discussion.

We therefore come to the question whether' the grounds of the objection to the evidence were sufficiently broad and specific, so as to avail the appellant upon appeal. The grounds stated were that it was incompetent and improper; that the proper foundation had not been laid for asking the question; that it was speculative, and not the proper method of proving damages. The grounds of the objection in the case of McGean v. Railroad Co., supra, were that the evidence was incompetent, irrelevant, hypothetical, and the witness not competent to give an opinion. The court held that they were not sufficiently specific to raise the question as to the admissibility of the evidence, and remarked:

“The objections seem to imply that opinions were competent on the subject. The trial seems to have been conducted on both sides, and more particularly on that of the defendant, upon the theory that all opinions were admissible as to rental value of the premises and the causes which affected it.”

In Carter v. Railroad Co., 134 N. Y. 168, 31 N. E. 514, the grounds of the objection were that it was immaterial, incompetent, and hypothetical, and that the difference in value was not the measure *466of damages. It was held that the objection was not sufficiently specific. In Ward v. Kilpatrick, 85 N. Y. 416, it was held that the objection that the witness was not a competent judge, and the inquiry involved a conclusion of law, would not answer. In the Roberts Case, supra, an objection that the evidence was incompetent— that it was for the court alone, and not for the witness, to determine the amount of damage—was held to be sufficient, as it called the attention to the vice in the question; that is, that it made the witness the judge of the damages, while that was the province of the court or jury. In the case at bar, in addition to the grounds which were held not to be sufficient in the cases cited, there was added: “That it is speculative, and not the proper method of proving damages.” It was held in the Roberts Case that the objection that the evidence was speculative was sufficient. Judge Peckham, in his opinion, says: “It is speculative upon the very question, and upon the only question, which the court or the jury is called upon to decide, and the question calls for the opinion of the witness upon that very subject.” It had, as we have seen, been held that the word “hypothetical” was not sufficiently specific. This rule was approved in Doyle v. Railroad Co., 128 N. Y. 494, 28 N. E. 495.

As to the second ground stated, all agree that the true measure of damages was the difference between the rental value of the premises with, and their rental value without, the railroad present in the street. The defendant’s objection was to the method the plaintiff was pursuing to prove his damages. If the objector intended by his objection to raise the question of the propriety of that rule, or theory, or method of proving the damages, it was clearly insufficient, for the plaintiff was entitled to prove such' difference by competent evidence. If, on the other hand, the ground of the objection mentioned was sufficiently specific to call attention to the point that the opinion of the witness as to the amount of damages was not admissible, but that the witness should state facts and not draw conclusions, it was sufficient. It was for the counsel making the objection to state his grounds so specifically that the exact point would be presented, so that the form of- the question could, if desired, have been so changed as to have avoided the objection. In the absence of an authority we might entertain some doubts as to the latter ground of the objection being sufficient. We find, however, upon reference to the case of Kernochan v. Railroad Co., 128 N. Y. 559, 29 *N.*E. 65, that this same ground of objection to such evidence was held to be sufficient. Upon the strength of these authorities we are constrained to hold that the defendant’s objection was sufficiently specific, and that it was reversible error to admit the evidence.

The complaint alleged that plaintiff owned the entire fee of the street in front of his premises. The proof was that he owned the undivided one-half only. The defendant was permitted, upon the trial, to amend his answer, setting up the nonjoinder of the other tenants in common with the plaintiff. The defendant asked, at the close of the case, for a dismissal of the action because it appeared *467that the plaintiff was not the sole owner of the fee in the street. The plaintiff was the owner of the entire fee of the abutting lot, and the damages he sought to recover were to the rental value of that lot. The damages to the fee of the street were nominal. The jury were instructed by the court that the plaintiff was entitled to recover six cents, only, for injury to the street proper. Plaintiff’s cotenants in the fee of the street were not interested in the question of the damages claimed in the complaint. They, at most, would have been entitled to only one-half of the six cents. If the action had been simply for injury to the fee of the street, the damages would have been nominal; City of Buffalo v. Pratt, 131 N. Y. 299, 30 N. E. 233. Judgments will not be reversed to allow a party to retry a cause of action where only nominal damages are involved. The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event. All concur.