The plaintiff was the owner of premises consisting of a lot of land and the building thereon, situated on the corner of 119th street and Third avenue in the city of Hew York. The lot and building were bounded 28 feet on the avenue and 80 feet on the street. The building was five stories in height above the first floor. This floor was used as a store, and the upper stories as flats or tenements. The plaintiff became the owner of the property in January, 1886, when the store and the basement under it were in the occupancy of tenants, and the action was brought for the damages sustained by the plaintiff by the erection and operation of the elevated railway, and to secure an injunction restraining such use of the street by the defendants. Upon the trial, evidence was given from which it could be inferred by the referee that the damages found to have been sustained by the plaintiff in consequence of the maintenance of the structure and the operation of railway trains upon it was the sum allowed by him for that purpose. The amount of damages which was considered to have been sustained by the plaintiff from these causes was the sum of $740.80. There was also in the case evidence indicating the value of the easements taken and appropriated by the railway companies in the maintenance of the structure and the operation of the trains upon it, and that value was determined by the referee to be the sum of $1,800, and, upon the payment of that amount, the defendants were permitted, by the judgment entered upon the report, to acquire the title to these easements. The evidence as to both these subjects was close and conflicting, and all of it appears to have been important, so far as it was given, in the consideration of the question of damages, as well as of the value of the easements. In the course of the examination of the witness Thomas T. McLaughlin, who was a real-estate broker having his place of business on Third avenue, and not far from the premises in question, he testified that the rents were less on Third avenue at the time of the trial than they were before the building of the railroad, and that a better class of people could be obtained as tenants on the street referred to by him than were obtainable for the use of property upon the avenue. The witness was. then asked, “To what do you ascribe this change in the character of the tenants or dwelling portion of the premises on Third avenue which you have stated took place?” To this question the defendants’ counsel objected, on the ground that it was incompetent, irrelevant, and immaterial, and as calling for the opinion of the witness. The referee overruled the objection, and the counsel for the defendants excepted, and the witness answered, “To the elevated road.” He was-then asked, “What are the effects produced by the elevated road on Third avenue?” and this was objected to as incompetent, irrelevant, and immaterial, but the objection was overruled, and the counsel for the defendants excepted. The witness then answered that he knew that “the noises, dust, and cinders had kept people away from there. They have to keep their windows closed in summer-time, and if they open them the cinders blow in, and sometimes it darkens up the apartments, and you can’t see across the street. In my opinion that has an effect upon the rental value of the premises. The rents of property on Third avenue which I had charge of before the road have de*246creased since the coming of the road. I ascribe that to the cause I just named,—the construction and maintenance of the elevated railway. I don’t know any other cause which would have had during these past years any detrimental effect upon the rental value of Third avenue properties for dwelling purposes.” These answers, especially the one first given, was no more than the expression of the opinion of the witness, and it bore upon a vital part of the controversy between these parties, and, as an opinion, it does not appear to have been legally received by the referee,—McGean v. Railway Co., 117 N. Y. 219, 22 N. E. Rep. 957; Avery v. Railroad Co., 121 N. Y. 31-43, 24 N. E. Rep. 20; Wyman v. Lexington, etc., Co., 13 Metc. (Mass.) 316,—and it was not authorized by anything which has been said in the case recently decided, of Roberts v. Railway Co., 28 N. E. Rep. 486, and not yet officially reported.
The witness was also asked, “How does this rental of property on First avenue compare with property on Second avenue and Third avenue in this locality?” This was objected to as calling for incompetent evidence, and as irrelevant and immaterial, but the question was allowed to be answered by the referee, and the defendants’ counsel excepted. His answer was that “it rents very much better on First avenue; there is no elevated road on First avenue. It rents better on First avenue than it does on Second and Third. First avenue has been far superior to Second and Third; better prices, and you can keep it rented. There is no elevated railroad on First avenue. ” This, evidence seems to have been received in the same view as the answers to the preceding questions were allowed to be given, and the ruling permitting the answers allowed the witness to declare his inferences from the facts instead of proving the facts themselves, and permitting that to be done, as the law regularly required it should be, by the referee. That seems to have been improper, within the authorities already referred to, as well as the case of Drucker v. Railway Co., 106 N. Y. 157, 12 N. E. Rep. 568. The facts, as they appear to have been in the mind of the witness, were all capable of being described and expressed in language enabling the referee to receive as clear a comprehension of them as that which was possessed by the witness, and for that reason these facts, instead of the opinions or deductions of the witness, should alone have been taken, leaving the referee, as it was his peculiar province, to draw such inferences from them as he considered to be justifiable.
The case upon the evidence was not so far proved as to allow the conclusion to be drawn that the referee’s mind was not affected by this objectionable testimony. It is, on the contrary, wholly probable that it entered into his determination and contributed to the support of the conclusions reached by him, not only as to the damages, but as to the value of these easements, and for that reason the error of the referee in permitting this evidence to be given cannot be disregarded. Baird v. Daly, 68 N. Y. 547. It was said in that ease, under analogous circumstances, “that we cannot say that the exclusion or admission of any of the evidence to which objection was taken upon the trial, however slight or of little weight it may seem, may not have influenced the result, and, if error was committed either in admitting or rejecting evidence against the objection and exception of the defendant, a new trial should be had,” (Id. 549,) and this rule was followed and applied in Re Will of Eysaman, 113 N. Y. 62, 20 N. E. Rep. 613. And it was also held, in Murray v. Insurance Co., 4 N. Y. St. Rep. 624, that it should clearly appear that the party against whom inadmissible evidence has been received has not been injured by the evidence, before the court on appeal will be at liberty to disregard it. The point whether the elevated railroad and the trains used upon it had depreciated' the value of- the property was one of the most important, if not the most important, involved in the trial of the ac-\ tian. It was not a fact which could be established by opinion or inference *247on the part of witnesses. This seems to be the result now of all the authorities, which require that the facts alone should employ the attention of the witnesses, whose evidence may be relied upon as supporting the conclusions intended to be maintained in the case; and, as that was not the course taken upon the trial, the judgment should be reversed, and a new trial ordered, with costs to the defendants to abide the result.
Van Brunt, P. J„ concurs.