Hood v. New York, Westchester & Boston Railway Co.

Testimony that the fee and rental value would be a given sum if the railway structure and operation thereon were absent, was condemned in Roberts v. N. Y. Elevated R. R. Co. (128 N. Y. 455), and yet the plaintiff here persists in employing it. There is nothing in the profession or learning of an expert in values of real estate that enables him to state, that if a railroad embankment made in 1909 should disappear, the value of the premises in question in December, 1916, would be $13,500, except as he may reason from other data. But, if he has other data, let him give it to the court, that it may draw inferences. The present record furnishes no opportunity to know anything save this, that a man has given figures, one of which is based on an imaginary condition, viz., the absence of the railroad embankment, which may be contrasted with an opinion of present value. Such evidence, standing alone, substitutes the expert for the court in a *9matter that could be.decided by the court, if the expert’s basis of calculation and judgment were revealed. Goodenough v. N. Y., W. & B. R. Co. (173 App. Div. 948) presented the same error, but the court disregarded it because the existing fee and rental value were given, and it was shown in addition that residential values had not changed materially since 1909, and the value before the embankment was started was given. Upon cross-examination there was evidence of sales. The trial court in this case tolerated the error, while the plaintiff omitted competent evidence that would support decision.

There should be a new trial, with costs of this appeal to the defendant.

Jenks, P. J., Mills, Putnam and Blackmar, JJ., concurred.

Judgment reversed and new trial granted, with costs of this appeal to the defendant.