Moore v. New York Elevated Railroad , 36 N.Y. St. Rep. 81 ( 1891 )

Per Curiam.

The learned judge was right in holding that the judgment offered in evidence by the defendants did not adjudicate concerning anything in issue in the present action.

A witness, Martin, was allowed to testify to the amount of depreciation in the rental value of plaintiff's property due to the elevated railroad. This was objected to by defendants on the ground that the witness was asked to give an opinion as to what the jury was to decide. The counsel objecting avowed that he did not object to an opinion being given as to rental value before and after the elevated railroad was built in front of the premises Although the witness directly spoke as to the amount of depreciation, the answer was not injurious, for, at the same time, he gave the value before and after the railroad was built, the difference being the amount of depreciar tion he testified to.

The defendants asked that the complaint be dismissed on the ground that plaintiff was never in possession of the premises. This was not correct, because if not in occupation during the terms of leases given, they were in occupation between those terms. No questions as to damages were raised upon this basis.

It is not necessary to determine whether the recovery of interest was lawful. No exception that would raise such a question was taken.

Judgment and order affirmed, with costs.

Freedman, J.

I concur but wish to add that under the decision of Hamilton v. Manhattan Railway Co., 58 N. Y. Super. Gt. 17, the leases could make no difference on the question of liability.