(dissenting.) I am unable to concur with Mr. Justice Daniels in this case. The judgment is plainly a righteous one, and it is amply supported by. the evidence. Even if the rulings of the learned referee in the admission of evidence are properly the subject of criticism, the defendants were not prejudiced, arid the objections on that head are too slight to warrant the reversal of so just and moderate a judgment. But I think the rulings of the learned referee were correct, and that the evidence objected to was properly admitted. Ho case has gone so far as to exclude the opinion of experts with regard to changes in the character of tenants and tenements and the causes thereof. The great question which has agitated the courts, and which has been finally settled by the court of appeals, was whether an opinion could properly be given as to the value of property on the line of the elevated rail way in case the structure were not there, this has finally been solved against the admission of such evidence. Roberts v. Railway Co., (N. Y. App.) 28 N. E. Rep. 486; Gray v. Same, Id. 498. The question objected to in the case at bar is covered neither by the point decided in these cases nor by the reasoning of the opinions, whereas in the Doyle Case (Id. 495) almost identical questions were held to be proper, and a judgment was reversed because of their exclusion. It is indeed difficult to perceive why an expert may not give his judgment upon a matter so entirely within the domain of experience as changes in the character of a street or in the occupation thereof. Upon what principle is his expert knowledge to the cause of such changes to be excluded? He is not speculating as to what would be the value of the property if the changes had not taken place. He merely says that, where well-to-do people formerly occupied an entire floor, it is now necessary to divide the floor into two apartments, and to rent each apartment to an inferior tenant; and, in his opinion, this change is due to the elevated railway. How, what is this but a statement of his observation and experience? The very next answer illustrates the point; for there he tells us just what he founded his previous opinion upon. People objected to noises, dust, and cinders. They objected to keeping their windows compulsorily closed in summer, and to the darkening of their rooms. This is what he saw. These complaints are what he heard. He observed well-to-do tenants leaving on account of these annoyances, and a cheaper class taking their places. He also observed that the flats had to be altered to suit the new condition of things, and to accommodate the building to lower rents. An opinion as to the cause of these changes does not substitute the judgment of the expert for that of the court upon any question of value or of damages. It is merely an opinion as to a change of condition. It is purely an observation, not only of the fact of the change, but of the causes thereof; for surely personal knowledge of the reasons given by a multitude of tenants for their coming and going is necessarily observation and experience. I have said that such questions were explicitly sustained in the Doyle Case. A brief extract from the opinion will demonstrate this: “The defendants,” said Earl, J., “put the following questions to several witnesses who had done business for several years on Sixth avenue, in the vicinity of the plaintiff’s premises, and who appeared to be familiar with the avenue and its business, and competent to speak in reference thereto: ‘What have you *248observed in respect of the effect of the elevated railroad upon property in this avenue?’ • What has been the effect of the elevated railroad upon Sixth avenue as a business street?’” The court held that these questions were competent, Earl, J., observing that they “called not so much for the opinions of the witnesses as for facts open for their observation. ” Reference was there made to the Drucker Case, 106 N. Y. 157, 12 N. E. Rep. 568, where similar evidence was held to be competent, the particular question being, “ What effect, if any, had it [the railroad] had upon the business of that store?” The answer to this question was almost precisely the same as that objected to in the case at bar. It was as follows: “Customers don’t come there any more as they used to, on account of the smoke, dirt, noise, and cinders what is there; and it is very dark in the stores.”
The other question discussed by Mr. Justice Daniels was, in my judgment, equally unobjectionable. A general comparison between the rental of property on the lien of the railway and of property on neighboring streets and avenues has always been permitted. The question is said to call for inferences from facts rather than the facts themselves. But, with great respect, I think the question did call for facts, none the less because such facts were general rather than particular. If particular instances had been asked for, they might have been objected to as calling for special bargains.- The proper course was to inquire as to the general character of rental values on the avenue in question, and to compare such values with those on neighboring streets and avenues. This was precisely what was authorized in the DrueTcer Case when Judge Finch observed that “a survey of the general facts” was required to ascertain how much the plaintiff was injured by the impairment of his easements. It was also within the character of evidence authorized in the Roberts Case, where Judge Peokhah remarked that “proof might be made of the filling up of the side streets along the lines of fhis railroad and of the incoming of a large population, 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.” When we consider, also, that the answer to this question amounted to nothing more than this,—that property rents very much better on First avenue, where there is no elevated road, than it does on Second and Third avenues, where there is one, the appellant’s point on this head seems trivial, and wholly insufficient to warrant the disturbance of the report. In my judgment there should be an affirmance, with costs.