#### Patrick Hart, Respondent, *v.*The Brooklyn Elevated Railroad Company and The Union Elevated Railroad Company, Appellants.

*Elevated railroad*— action *for an injunction and damages*— admission *of improper evidence*— when *a judgment will not he reversed therefor*— trial *properly had at Special Term.*

Upon die trial of an action brought against an elevated railroad company to enjoin the further operation of the road and for the recovery of the rental and fee value of the easements taken by it, evidence was admitted as to rental value of property other than that of the plaintiff before and after the construction of the road.

*Held,*that although the evidence was inadmissible, still, as the amount allowed for loss of rental was small and was supported by other competent evidence, and as upon an examination of the whole case it appeared that the appellant had not been prejudiced thereby, the judgment would not be reversed.

.Such a case is of an equitable character and is properly triable at the Special Term and a defendant is not entitled to a j ury trial.

. Appeal by the defendants, Tlie Brooklyn Elevated Railroad Company and The Union Elevated Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of January, 1895, upon the decision of the court, rendered after a trial at the Kings County Special Term, perpetually enjoining the defendants and their servants and agents from maintaining an elevated structure on Adams street, in the city of Brooklyn, in front of the plaintiff's premises, unless they pay to the plaintiff a certain sum as fee damages, and adjudging that the plaintiff recover of said defendants the damages sustained up to the time of the bringing of the action.

The action was brought to enjoin the further operation of the defendants’ elevated road and for the recovery of the rental and fee value of the easements taken by them.

*William H.*Page, *Jr.,*for the appellant.

*Francis P.*Whitney, for the respondent.

Brown, P. J.:

Upon the trial of this action, the court admitted evidence as to the rental value of property other than that of the plaintiff before *83and after tlie construction of the defendants’ road. The defendants objected to the admission of such testimony and excepted to the ruling of the court.

"We are of the opinion that the testimony was inadmissible and should not have been received. *(Huntington*v. *Attrill,*118 N. Y. *365; Matter of Thompson,*127 id. 463.)

The rule stated in those cases is as applicable to rental value as to fee value. In *Matter of Thompson*it was said that “ a party may not establish the value of his land by showing what was paid for another parcel similarly situated, because it operates to give to the agreement of the grantor and grantee the effect of evidence by them that the consideration for the conveyance was the market value, without giving to the opposite party the benefit of cross-examination to show that one or both were mistaken.” But, although the ruling admitting the testimony was erroneous, we do not think that it affected the result reached by the court. The amount allowed for loss of rental was small and is supported by other competent evidence, and the rule is well settled that a judgment will not be reversed for érror in the admission of testimony, when the court is satisfied, upon an examination of the whole case, that the appellant has not been prejudiced thereby. *(McGean*v. *The Manhattan Railway Co.,*117 N. Y. 219.)

The appellant has not in this case been prejudiced by the testimony admitted, and the judgment must be affirmed.

The defendant also appeals in this and three other cases argued at this term of the court from an order denying a motion to send the cases to the Circuit for trial and also denying a motion to stay the trial of the action pending condemnation proceedings. The cases were all of an equitable character and were properly triable at the Special Term, and defendants were not entitled to a jury trial.*

The condemnation proceedings were commenced after the actions were at issue and upon the calendar of the court for trial. The decision made by this court in *The Matter of the Brooklyn Elevated Railroad*(76 Hun, 79) is not, therefore, applicable, as in that case the actions which were stayed were commenced after condemnation proceedings were instituted.

*84The motion was properly denied, and the order must be affirmed.

Judgment and order affirmed, with costs.

Dykman and Pratt, JJ., concurred.

Judgment affirmed, with costs.

*

See *post,*page 859.