Hitchings v. Brooklyn Elevated Railway Co. , 27 N.Y.S. 132 ( 1894 )

Van Wyck, J.

This is an action in equity to compel defendant, as a condition of avoiding an injunction against its further, use of the street, to pay the plaintiff compensation for his land taken in the street, and for damage to his adjacent premises by the structure of an elevated railway and the continuous operation thereof. The trial resulted in a judgment for twenty-five dollars damages in favor of plaintiff, from which he appeals. Among other rulings which he insists were errors harmful to his claim, was that excluding evidence of the comparative increase of similar property in the immediate neighborhood, viz., on the nearest part of the two nearest streets. The Court of Appeals has held such testimony admissible, and, in fact, while discussing the inadmissibility of the general opinion of an expert as to what would have been the value of certain premises if the railroad had not been built, suggested that evidence of the comparative increase in valué of similar property in the neighborhood furnished proper data for the consideration of the jury or court on the question sought to be established by such general opinion or conclusion of the expert. Roberts v. N. Y. El., 128 N. Y. 455, 473 ; Becker v. Met. El., 131 id. 509, 511, 513.

Judgment must be reversed and new trial granted, with costs to- abide the event.

Clement, Ch. J., concurs.

Judgment reversed and new trial granted, with costs to abide event.