eliminated it is impossible for this court to determine. We went to the very extreme limit in upholding the judgment in the McGean Case, but there the evidence was much more minute, and the objectionable evidence seemed to have been objected to on grounds other than its absolute incompetence. We thought that it was doubtful whether the objection specifically and pointedly raised the question. The objection in this case is not only that it was incompetent, but the question was objected to on the ground that it was for the court alone, and not for the witness, to determine the amount of damage. We think the objection was

discussed here.

as could the expert. And that very inference must in some way be drawn by the jury, for it is the question it is called upon to decide. The opinion of the expert, if of the least value, would have to be based upon an intelligent consideration and knowledge of the value of other property as nearly as may be similarly situated, in about the same quarter of the town, and under nearly the same circumstances, but without the presence of a railroad of the nature of the defendants' in front of the property. All this information he could easily impart to the jury. Proof might be made of the filling up of the side streets along the lines of this railroad, and of the incoming of a large popula-sufficiently exact to raise the question that has been tion; the erection of buildings somewhat similar to plaintiff's, and their rental and fee value; and finally a general statement of the condition and value of property in the neighborhood of that in question could be proved. All these facts would be of service in determining the question to be submitted to the jury. When they are all stated, and past and present values proved, the jury or the court will then be as fully competent to draw the inference which it is its peculiar province and duty to draw as the expert. This special question is one which all admit is to some extent and in all cases a matter of conjecture and speculation. How much the appreciation of property is itself due to the erection of the road, and the consequent filling up of the neighborhood opened by it, and whether the property without the construction of the road would ever have become as valuable as it is, are questions which, when these various data have been given, can be speculated upon as well by the judicial tribunal as by the hired expert. It is none the less conjecture and speculation because the expert is willing to swear to his opinion. He comes on the stand to swear in favor of the party calling him, and it may be said he always justifies by his works the faith that has been placed in him. This case is a good illustration of what may be almost termed the wholly worthless character, for any judicial purpose, of the testimony on both sides upon this one point, as to what would be the value of this property if this railroad had not been built. perts on the part of the plaintiff guessed that it would have been $30,000 more valuable, while those on the part of the appellant (equally intelligent, it would seem, and equally honest) thought that the value of the property would have been less if the railroad had not been built. The court is not in the least aided by these various guesses of these hired experts. If the facts upon which these gentlemen based their guesses are placed before the court, more exact justice will in my judgment be the result if their speculations be excluded, and all speculation as to the damage sustained by a plaintiff be confined to the court, and drawn entirely from the evidence in the case.

The ex

Lastly, it is alleged on the part of the plaintiff, that even assuming error, it is not prejudicial to the defendant, because the defendant is not bound to avail itself of the privilege granted it by taking a deed of the easement from the plaintiff upon the payment of the amount of the damages found by the court, but may submit to the injunction, and in the meantime take proceedings to condemn the property. We do not think this contention can avail the plaintiff. The inquiry into the fee value of the plaintiff's property is predicated upon the idea that the defendant is to take the property at the value found in order to escape the injunction which would otherwise issue, and indeed it would seem that the defendant would have not much choice in the matter, and that it would be substantially bound by the judgment to take the property at the value found by the court or jury. It is idle to talk about a company situated like this corporation submitting to an injunction, and ceasing to operate its road through the avenue for a single day. It might be questionable whether there would be the slightest justification for such stoppage, founded upon any allegation that the amount of damages found by the court was too great. At any rate, the question was tried by both sides for the purpose of determining what the amount of damages really was, and the defendant has the right under the circumstances, where the investigation of such question was proper and material, to claim that it should be made upon competent and legal evidence; and where improper evidence is admitted to its damage, it has the right to ask the court for relief.

Our conclusion is that for the error in the admission of this evidence the judgment should be reversed and a new trial granted, costs to abide the event.

ANDREWS, EARL, FINCH and O'BRIEN, JJ., concur.

GRAY, J. (dissenting). The errors presented by this record, and upon which the appellants insist as requir ing the reversal of the judgments below, consist in the admission by the trial court of certain evidence adduced by plaintiff to show that the maintenance and operation by defendants of the elevated railroad were damaging to his property rights. Witnesses were called who were qualified to speak from business experience, from familiarity with the values of real property in the city of New York, and who professed to be skilled by reason of an especial study of the general effect upon abutting properties of the elevated railroads, and the exceptions arose upon the admission of their opin

It is claimed however on the part of the plaintiff, that even if this question were objectionable, yet the fault was cured by the questions put by the court, in response to which the witness said that the four houses fronting on Third avenue were worth $80,000, and would have been worth $110,000 if this structure and road were not there. If the objection were only to the form of the question, that which was made use of by the court would probably have cured the difficulty. But it is no objection to form that I have been discussing. The objection is to the substance of permitious in answer to the following questions: "To what ting the witness to state what in his opinion would have been the value of this property at this time in case the railroad had not been built and operated. This objection was not cured by the alteration of the form of the question. It is also claimed that there was sufficient evidence, excluding entirely the evidence of experts under the ruling of the court, upon which this judgment may be sustained. There is some other evidence in the case, but what would have been the result if all this objectionable evidence were

extent, in your judgment, is the value of that property damaged, if at all, by the presence of the structure and the running of the trains?" What do you estimate the rental value of the property to be, the railroad not being there?" "To what extent, in your judgment, if at all, is the selling and rental value of this property * ** * diminished by the presence on Third avenue of the elevated road, and the operation of the passing trains?" To these questions the defendants interposed objections on several grounds,

by depreciating the value which his estate in the abut-
ting land would otherwise have, he is entitled to re-
cover from them, as trespassers, damages to the ex-
tent of the injuries suffered by his estate.
It is very
plain that the value of these easements cannot be ar-
rived at by exact proof. Judge Van Brunt, in deliv-
ering the opinion of the General Term of the Supreme
Court in Kenkele v. Railway Co., 8 N. Y. Supp. 707,
well said: "How are we to arrive at the value of these
easements taken by the defendants? To the plaintiffs
they are of no value except because of the enhanced
value which they give to the property they own front-
ing upon the streets. By themselves they are worth-
less-have no intrinsic value." Hence he reasoned
that the more certain evidence of their value was in
proving what the property would be worth with the
appurtenant easements, and what without them. I
think that reflection, and a careful consideration of
the real bearings of the evidence and of the circum-
stances of the case, must induce the conviction that the
evidence does not usurp the province of the court or
jury, and that there are ample and cogent reasons for
its admission.

The admissibility of opinions as proof of the marketable condition and value of property, where it is not practicable to give more definite knowledge, has been long settled, and has formed one of the admitted exceptions to the rule which excludes the opinions of witnesses as evidence. 1 Greenl. Ev., § 440a; Clark v. Baird, 9 N. Y. 183; Robertson v. Knapp, 35 id. 91. The ground of the exception is not because the persons who give such opinion evidence are superior in scientific capacity or attainments, but because they are shown to have a knowledge of such matters which jurors have not, and the value of property is actually a mere matter of opinion. If then expert or skilled evidence is admissible to prove generally the value of real property, why should it be deemed inadmissible to prove its value under different circumstances; that is to say, not only what is its value as at present circumstanced, but what would be its value if circumstanced differently, and under ordinary conditions of street uses? And why is an opinion not proper as to the extent of the damage, if any, to the value of the land, as being often the best attainable evidence? The mere objection of incompetency is no longer available to exclude opinion evidence, because upon the fact in controversy, in a case where more definite knowledge is not to be had. There is the strongest reason for ad

the only one of which material here is that of the competency of such evidence; but the trial court nevertheless permitted the witnesses to answer. The question, which is thus brought prominently before us for decision is, only comparatively speaking, novel; but it assumes very great importance, because not orly are the principles of evidence involved, but as we are informed, a great number of decisions in the courts below, and many recoveries, rest upon the theory that the admission of such evidence is necessary and proper in such cases. If we shall say that it is inadmissible, it must be because it is deemed contrary to the principles underlying the law of evidence and to settled rules. The point which is mainly made against the competency of such evidence is that it calls for the conclusions of the witness upon a matter which the court or jury should alone determine, and hence invades their province. It is also suggested that to allow of such evidence is to permit speculation to supply proof. If the proposition were wholly true, it might be difficult to sustain the right of the plaintiff to submit his case to the jury upon such proof. But it seems to me that the argument against this species of proof is inapplicable to cases of this character, where evidence as to the damage suffered by the abutting landowner cannot always be furnished by exact data or in statements of facts, and where, to an intelligent | judgment upon the issue, expressions of opinions seem so necessary. Nor is it true that the evidence is forbidden by established rules, whether we consider that question upon its truth or upon the principles of the law of evidence. These principles cannot be embodied in rigid and lifeless formulas which deny adaptation to new conditions in human affairs. They admit of expansion and of frequent exception whenever it is needed in order to demonstrate the truth. A different view of the law of evidence might be extremely subversive of justice. The law of evidence, as a system, is based both upon principles and upon rules which, when not prescribed in statutes, arise out of precedents in decided cases. The rule is an exposition of the principle, but it is based upon judicial experience in the investigation of controversies by means of testimony, and is necessarily influenced by what may be the existing condition of things. It is well, though somewhat elementary, to observe that in the application of the principles of the law of evidence to the investigation of the truth, iu a coutroversy over an alleged matter of fact, the aim is to confine the proofs only within the bounds of what is competent and satisfactory evi-mitting the opinions of witnesses to prove the extent dence; and that by competent evidence is meant such as the nature of the thing to be proved requires, and that by satisfactory evidence is meant such as shall suffice to satisfy the unprejudiced mind. 1 Greenl. Ev., § 1. If some rule of evidence is alleged to militate against the competency of the species of proof offered, I suppose that it should comply with two conditions to satisfy the mind as to its force. It should appear that it was established upon a sufficient precedent, fitting the case, and that the nature of the thing to be proved did not require any exception to or modification of the supposed rule. In this case the matter of fact, the truth of which is the subject of judicial investigation, is whether the maintenance by the defendants of an elevated railroad structure, and the operation of its trains upon the street in front of the plaintiff's premises, have caused any damage to him by which the value of his property rights has been impaired. The controversy is over that fact and the question of the damage. Such a condition of things in the street is a new use, and affects certain rights in and over the street, which are considered as appurtenant to the abutting lands. It constitutes a taking of the easements, which the property-holder is legally or beneficially entitled to; and if he can establish that the acts of the defendants have caused damage to him

|

of damage sustained by reason of the defendants' acts
in the circumstances and necessities of the case. With-
out the aid of the opinions of persons experienced in
the subject of real estate values in a metropolitan cen-
ter like New York, it would be rarely, if ever, possi-
ble for the plaintiff to make a satisfactory or sufficient
case for an intelligent judgment by courts or jurors.
The values of real estate are fixed by and depend upon
many considerations. The factors of value, in the
particular locality, in the character of the neighbor-
hood, and in the tendencies of trade or of residence,
are indefinite, and are not matters of common knowl-
edge. A new and different use of the street may affect
the growth in value of a city lot favorably or adversely,
but as to which way and to what extent is a matter
largely of opinion, based upon study and experience,
and not of exact knowledge from definite facts.
not a matter requiring any particular intellectual at-
tainments to understand, but it involves an acquaint-
ance with affairs and the possession of knowledge ac-
quired through habits of observation and business,
which must be essentially peculiar, and it would be
stretching presumption rather far to assume that the
knowledge is common to all persons. In the growth

It is

of a city and the increase of its business and wealth are causes for a steady enhancement of its real estate

values, though its direction may be erratic and incapable of being foreseen. That the value of the plaintiff's property upon the Third avenue might be greater to-day than it was before the defendants built their railroad structure, if the street remained in its earlier condition, is a possible if not a natural assumption. But it is a fact incapable of definite knowledge, and plainly, as it seems to me, best ascertainable through the opinions of persons whose familiarity with the neighborhood and habits of business observation in such respects could qualify them to speak to the issue. The question before us is not like that of a trespass once committed upon property rights, where the value before the trespass and the value after its commission might sufficiently express the facts, from which jurors could deduce conclusions as to any damage. Here the continuing trespass upon and the deprivation of appurtenant property rights introduce au element the aggravation of which is to be considered in connection with possible general benefits conferred, and in relation to municipal growth under normal or usual conditions. Whether the elevated railroad enhanced the values of the abutting property over what they would have become in its absence is a fact which is best and most intelligently determined from competent opinions.

at which the case was decided, was composed of Justices Selden, Welles and Johnson, and the opinion was delivered by Justice Selden. The evidence was held admissible upon the ground that unless questions involved a subject, knowledge of which is presumed to be alike common to all men, skilled opinions were proper. The authority of these cases has sufficed for the views of courts in other States, though it must be admitted that judges have not uniformly agreed. Some of these cases are cited in the respondent's brief; but extended reference to them seems unneces sary. The proposition must commend itself upon obvious grounds of necessity and of right, as well as because it is sanctioned by authority in the courts of this State. But I may refer to some cases in the Supreme Court of Massachusetts, where the question has been pertinently discussed. In Shattuck v. Railroad Co., 6 Allen, 115, where lands were taken for a railroad, testimony as to the amount of damage done to the petitioner's estate was allowed upon the theory that where the amount of damage done to property is in controversy, opinions by persons acquainted with the value of the property may be given. It was there ob served that "as value résts merely in opinion, this exception to the general rule that witnesses must be con fined to facts, and cannot give opinions, is founded in necessity and obvious propriety;" and the opinion cites Clark v. Baird, supra. In Swan v. County of Middlesex, 101 Mass. 173, where land was taken for widening a street, the admission of such opinions was

sity, upon the ground that they depend upon knowl edge which any one may acquire, but which the jury may not have, and that they are the most satisfactory and often the very best attainable evidence of the fact to be proved." It was there said: "The witnesses, being competent to testify to the value of the land affected before and after the alteration of the highway, might testify to the simple question of arithmetic, which of those two values was the greater; in other words, whether the petitioner's estate was benefited or injured." And see Sexton v. North Bridgewater, 116 Mass. 200.

The decisions in our own State, which I have men. tioned, have been relied upon by several text-writers. See Lawson Exp. Ev. 451; and Rogers Exp. Test., $152; and also Whart. Ev., § 450. In Rogers' work it is remarked: "That there is no such inherent distinc tion between questions of value and questions of damages, if from the latter is excluded all idea of any legal rule or measure of damages, as brings the one within and the other without the province of the opinion of

An early and leading case in the reports of the decisions of this court is Clark v. Baird, 9 N. Y. 183, which was an action on the case for fraud in misrepresenting the boundaries of property sold by defendant. The premises consisted of a tavern stand, and the rep-justified upon like reasoning and rather from necesresentation made was that they extended to a certain mill-race and tree. A witness who had examined the property with a view to purchase was permitted, under objection, to testify that "it was worth $1,000 if it extended to the race and trees. The strip taken off would reduce it one-fourth." This testimony was objected to upon the ground that the amount of damage cannot be ascertained by the opinion of the witness. The opinion of the court was delivered by Judge A. S. Johnson, a most learned and able jurist, and was directed to the discussion and elaboration of the question of the competency of opinions upon such a question. This is clear from an observation of the judge, who said: "The evidence was pointed solely to the question of damages, and the objection was undoubtedly understood by the court to relate to the competency of opinion upon the question of value." Many cases in this and other States were considered, and with such particularity as to render it quite unnecessary to repeat the labor here. The propriety of the evidence objected to was sustained upon the ground of necessity and of superior convenience. The opin-witnesses." And in Wharton's work it is remarked, ion summed up a general discussion in this wise: "Upon this ground [i. e., of necessity], as well as upon that of superior convenience and the constant reception of such testimony upon trials without objection -a tacit but strong proof of its propriety-it must be deemed established that upon a question of value the opinion of a witness who has seen the thing in question, and is acquainted with the value of similar things, is not incompetent to be submitted to a jury." In Robertson v. Knapp, 35 N. Y., at page 93, Clark v. Baird is referred to with approval as authority for the rule that opinions are admissible "as to the value of property in cases where the value was properly the subject of inquiry." The point of the objection in Clark v. Baird is precisely the same in principle, if not in its facts, as the one now presented. In the early case of Railroad Co. v. Budlong, 10 How. Pr. 289 (which was decided in 1854, a year later than Clark v. Baird), the opinion of a witness was held competent to show what would be the injury to the appellant's farm arising from the construction of the railroad, and what would be its diminution in value from the The General Term of the Supreme Court,

same cause.

with respect to the facts upon which a witness bases his opinion as to the depreciation in value, that "when, as is often the case, these facts can be best expressed by the damage they cause, then this damage and its extent may be testified to by witnesses." The following authorities are in point, and may be referred to in connection with this discussion: Snow v. Railroad Co., 65 Me. 230, 231; Railroad Co. v. Henry, 79 Ill., at page 294; Improvement Co. v. Sassaman, 67 Penn. St. 415; Snyder v. Railroad Co., 25 Wis. 66, 70; Lehmicke v. Railroad Co., 19 Miun. 464.

As against the weight of authority in the cases of Clark v. Baird, supra, and Railroad Co. v. Budlong, supra, I find no case since in this court which compels a different view. Van Deusen v. Young, 29 N. Y. 9, was an action of trespass for damages caused by cutting down and taking away trees from land, and a witness was asked, "Would the farm be worth more or less with the timber cut off?" The impropriety of this question was deemed to exist in its being irrelevant to the issue, and as calling for a speculative opinion. Clearly this is not authority for the case at bar. Judge Mullin, who delivered an opinion in the case, in dis

cussing the competency of opinion evidence as to value, most pertinently says: "There are cases in which it is necessary to put to the witness the very question, how much damages the plaintiff has sustained by reason of the act or neglect of the defendant. These are cases in which no data can be given which could enable a jury to arrive at the measure of damages, because the amount of the damage is known and can be properly appreciated and measured only by persons of skill in the business or matter to which the damage in the case relates. For a full and accurate examination of the cases on the question, see Clark v. Baird, 9 N. Y. 183." Marcly v. Shults, 29 id. 356, was an action for damages for the overflowing of the plaintiff's land from a mill-dam; and a question discussed related to the offer to ask the plaintiff (himself a witness) what the value of the use of the house was per annum before the raising of the dam. This was deemed objectionable because the value of the rent was not important, "except argumentatively." It was remarked however that "if the house had been kept for renting, and something in the nature of a market price for the use could have been proved, it might have been competent." Teerpenning v. Insurance Co., 43 N. Y. 279, was an action on a policy of insurance for the loss of goods by fire, and cannot be deemed to be, either in fact or in principle, controlling. Clark v. Baird is there cited with this observation: "That upon questions of value the opinions of witnesses are admissible, but with the qualification that the witnesses must have peculiar knowledge of the article in question and its value."

I do not think other authorities cited from the decisions of this court call for discussion, until we come to the recent cases of McGean v. Railway Co., 117 N. Y. 223, and of Avery v. Railroad Co, 121 id. 31. The first of these cases might be deemed, upon a cursory consideration, decisive of a contrary view. The decision of that case however did not turn nor depend upon the point as to the competency of the evidence as to value, nor was the question altogether the same as in the present case. There was no discussion by counsel of the point, except in the brief of the appellant's counsel, and the case of Clark v. Baird was not alluded to at all. The case was affirmed upon other considerations, and as our decision did not involve any necessary determination as to the principle of evidence in question, there is no valid or just reason why we should be limited in our present discussion by the McGean Case, especially when the point becomes important and the determination of the question essential. In the other case of Avery v. Railroad Co. the plaintiff was a witness, and he was asked this question: "Do you know what the rental value of your property, real and personal, would have been between the 10th day of September, 1881, and the 28th day of January, 1884, if there had been a sufficient opening kept and maintained by the defendant opposite to your hotel for the convenient access of passengers and their baggage to and from the twenty-foot strip of land lying south of the hotel?" The propriety of such a question was denied upon several grounds. It was held that the witness had not been shown to be qualified to give such an opinion, and that the question assumed the insufficiency of the opening. It was said that it was an attempt "to prove through the witness that he was prejudiced by the existing condition of things as to the opening in the fence, and under the guise of giving his knowledge, to elicit his opinion that the value of his business to him would have been greater if something different in the way of an opening had been maintained." Therefore, and on the strength of authorities mentioned in the opinion, the question was condemned as usurping the province of the jury. There was no question or discussion as to the competency of expert evidence, or as to opinions of persons

possessing a knowledge of a subject which in its nature is peculiar, and cannot be assumed to be common to all. The plaintiff was conducting a hotel and restaurant business, and was a lessee of the premises. Whether his business was injured or not was the subject of definite knowledge, and capable of being testified to by exact data. The present case therefore differs in its facts, as in its principles, from the cases relied upon, and is only appositely met by the authorities of Clark v. Baird, supra, and Railroad Co. v. Budlong, supra. Here we have a new structure in the streets, which was a perversion of a street use, and which the Legislature could not authorize or sanction without providing for compensation to the abutting property-owner for the value of the appurtenant easements appropriated, if shown to have a value to him greater than any particular benefit conferred upon his estate by the presence of the structure. How in the nature of things is such a matter susceptible of exact proof by facts? Is not the effect upon the plaintiff's estate from the presence of the defendant's struc ture and its operation of trains, and any damage sustained thereby, best shown by receiving in evidence the opinions of those persons who, by reason of experience, observation and familiarity with the various and more or less inexact and indefinite causes which operate upon real estate values, are skilled or expert upon the subject? How can the value of the property, if enjoyed in a usual manner and if subjected to ordinary street uses, be ascertained except by way of such evidence? There is no application of any new principle of evidence. Clark v. Baird is sufficient authority for the reception of opinions in evidence upon questions of value and damage. But there is, in a changed and new condition of things, a new reason for the admission of expert opinions as to the extent of damage sustained by an abutting land-owner from the presence of these elevated railroads. This court has decided that their structures destroyed the ordinary uses for which a street was intended, and appropriated certain easements of the abutting property-owners, wherefore they should make compensation in damages for any injury which may be proved to have been suffered. Is not that injury, under the extraordinary circumstances of the case, more intelligently proved through the opinions of persons shown to be competent to express such opinions? The witness' evidence does not conclude the court or jury, and it is still left to them to decide, with the aid of such skilled opinions, as to the measure and amount of damages which should be awarded by way of compensation. And if the witness is asked for his opinion as to the extent to which the plaintiff's estate has been damaged, it seems an overrefinement of argument to deny the propriety of allowing him to state the result of a mere subtraction of the values assigned to the premises with and without the structure. The judgment of the court or of jurors is not limited to the opinions given, but is formed from the consideration they may give to the evidence, and is simply aided by the information they may have derived from the skilled opinions in the case.

Upon the grounds of superior convenience, of necessity and of an obvious propriety, and if we would have intelligent and just decisions of such issues, I think the evidence objected to is admissible in such cases, and therefore that the judgment below should not be reversed for the errors alleged. RUGER, C. J., concurs.

We feel for the Tribune when its printers spoil its good things. It said that it is inexcusable to call a man a liar-"how much prettier and more polite, as well as more scholarly, to call him Thondax!'"