Gray v. Manhattan Railway Co.

Earl, J. The main question argued before us and considered at the General Term is whether the plaintiff could maintain his judgment in the face of a finding that his “ premises would not be worth as much as they now are had the railway and stations not been built.” This is a very important question, and its determination may not only affect this case, but may others pending or to be commenced. We do not deem it important or proper now to determine it, as there are other grounds for the affirmance of the order appealed from. That question may remain undetermined in this court until it is presented for consideration in some case where its solution is required. We may look into the record and affirm the order if any error is found there to the prejudice of the defendants. The question of fee damages was closely contested upon the trial. The principal litigation between the parties related to that, and the defendants had the right to have it determined upon competent evidence. Martine, an expert witness called *508 by the plaintiff, was asked this question: “ What would be the value of the four lots at present if there were no interference with the light, air and access which you have described ? ” The defendants sufficiently objected to this, the court overruled the objection, and the witness answered: “Worth $112,000.” Curtis, another expert witness, was asked this question: “ Will you state what, in your opinion, would the value of the property be were it not for the existence of this interference with light, air and access by the elevated railroad and its structures and its cars ? ” Defendants’ objection being overruled, the witness answered: “ $110,000.” Henriques, also an expert witness for the plaintiff, was asked a similar question, and, defendants’ objections being overruled, he answered: “In the neighborhood of $112,000 to $115,000.” We have just decided in Roberts v. Elevated Railroad * and Doyle v. The Same† that such questions were incompetent, and that it is erroneous to permit them to be answered. The reasons for our decision are found in the opinion of Judge Peckham in the case first cited, and we need add nothing thereto. The witness Henriques was also asked this question: “ What, in your opinion, is the best use to which this property (the four lots) could have been put if it had not been for the elevated railroad and this interference ? ” This was objected to on behalf of the defendants “ as not within the issue, as hypothetical and conjectural, and as not bearing upon the value of the easements in question, nor the true measure of damages, and as calling for the whole of the damage and not that resulting merely from a violation of the plaintiff’s easement, and as incompetent, irrelevant and immaterial.” The court overruled the objections, and the witness answered: “ First class dwellings.” He was then asked: “ What is its best available use now % ” This was objected to on the same grounds, and the witness was permitted to answer: “ Stores and flat houses.” The first of these two questions was clearly incompetent for the same reasons which condemn the questions first above referred to. What would have been the state of things at and *509 in the vicinity of plaintiff’s lots if the elevated road had not been constructed was mere matter of speculation and conjecture. No opinion in reference thereto could be based upon observed or proved facts. The conditions upon which the witness was asked to base his opinion never existed,.and could not exist. Nor was it competent to prove by the opinions of witnesses the “ best use ” to which the lots could have been or could be put. The facts bearing upon the matter should be proved, and the inferences from them should be drawn by the triers of fact. It is claimed, however, that the General Term ought not to have reversed the whole judgment, and that it should have-permitted that portion of the judgment to stand which awarded the injunction. The injunction was not absolutely awarded; but it was awarded substantially upon the condition that if the defendants would pay the plaintiff the damage done to his lots by the taking of his easements, which was found to be eight thousand dollars, it should not issue. The amount of damage was thus quite material. Unless the court had found it to be substantial, it could, in the exercise of its discretion, have withheld the injunction and left the plaintiff to his remedy at law. An equity court is not bound to issue an injunction when it will produce great public or private mischief merely for the purpose of protecting a technical or unsubstantial right. (McHenry v. Jewett, 90 N. Y. 58; Health Department v. Purdon, 99 id. 231; Jeffers v. Jeffers, 107 id. 650; Genet v. D. & H. C. Co., 122 id. 505; Thomas v. M. Mutual Protective Union, 121 id. 45; MacLaury v. Hart, Id. 636.) The injunction is so dependent upon the damages that the General Term could not with propriety reverse the judgment as to damages and permit it to stand as to the injunction. But even if it could have reversed the judgment in part, it is at least generally in the discretion of the court when it finds error in part of a judgment requiring a reversal of such part, to reverse the whole judgment, and that discretion will not, certainly except under peculiar circumstances which do not exist here, be interfered with upon appeal to this court. For *510 these views, the case of Roberts v. Elevated Railroad is also an authority. For the errors mentioned, the order appealed from should be affirmed and judgment absolute ordered for the defendants, with costs. All concur, except Gray, J., not sitting. Order affirmed and judgment accordingly. Footnotes [*] Ante, page 455. † Ante, page 488.