9 N.Y.S. 313 | The Superior Court of the City of New York and Buffalo | 1890
Most of the questions that are presented on the defendants’ appeal have heretobefore been decided adversely to the defendants, and a further discussion of them is unnecessary. The question presented by the exception of the defendants to the ruling of the court permitting witnesses to testify what, in their opinion, the rental value of plaintiffs’ premises would have been if the defendants’ railroad had not been constructed, has lately been decided by the general term of the supreme court, in the first department, adversely to the defendants. Kenkele v. Railway Co., 8 N. Y. Supp. 707. The reasons assigned in that case, and the fact that there is plenty of evidence to sustain the finding of damage, other than that to the admission of which exceptions were taken by defendants, warrant us in overruling such exceptions, and in doing this we follow the suggestion contained in the McGean Case, 22 N. E. Rep. 957.
The defendants put a witness on the stand who testified that during the trial he went to the property described in the complaint, and asked to be admitted, so as to make observations; but the proprietor (Mr. O’Brien, who had been called by plaintiffs as a witness in their behalf) refused to admit him. The defendants then asked their witness to state the reasons he (O’Brien) gave. This question was objected to and excluded, and the defendants duly excepted. It was stated by defendants’ counsel that the object of the question was to show the animus of O’Brien in the case. I have always understood the rule to be that a witness may be asked questions tending to show his hostility to¿ or bias in favor of, one of the parties to the action, and if he denies such hostility or bias he may be contradicted by other evidence; and such is the rule laid down in the following cases: Long v. Lamkin, 9 Cush. 361; Atwood v. Welton, 7 Conn. 66; Starks v. People, 5 Denio, 106; Newton v. Harris, 6 N. Y. 345; Campbell v. State, 23 Ala. 44; Schultz v. Railroad Co., 89 N. Y. 242. In a civil action, says Greenleaf, a witness may be asked if he has not expressed feelings of hostility to one of the parties, and if he denies the fact he may be contradicted by other witnesses. 1 Greenl. Ev. § 450. It is true that it was said in Schultz v. Railroad Co. that it is always competent to show that a witness produced upon the trial of an action is hostile in his feelings toward the party against whom he is called to testify, or that he entertains malice toward that party, and many cases were cited in support of that proposition; but-in all of the cases cited, except one, the witness whose bias was attempted to be shown either was a party to the action, or was first questioned in reference to his feeling of hostility toward the party, and such was the course of procedure in the Schultz Case, itself; and in the excepted case it does not appear whether the witness had or had not first been examined in regard to the alleged statement of hostility. The rule is stated in 2 Phil. Ev. 902, as follows; On the cross-examination of a witness, it will be permitted to ask him as to any vindictive expressions he may have used towards other persons, where the use of such expressions would affect the character or credit of the witness.
The trial judge found, as matter of fact, in action Ho. 3, that prior to April 4, 1882, the premises in suit had been leased until May 1, 1883, by certain executors, predecessors in title of the plaintiffs, under which lease the tenants occupied the said premises for the said term, and that the damage to the rental value of said premises caused by the defendants from April 4,1882, to May 1, 1883, was $51)0; but he found, as matter of law, that plaintiffs were not entitled to recover this sum of $500. A like question arose in action Ho. 4. The right of a plaintiff to recover his damages in such a case, except so far as it may be barred by the statute of limitations, has been upheld by the general term of this court in the case of Mortimer v. Railway Co., 8 N. Y. Supp. 536, decided February 6, 1890. In the case at bar it is claimed, however, that, the action having been commenced April 4, 1888, the statute of limitations is a bar to any recovery for the period between April 4, 1882, and May 1, 1883; and this claim, as well as the ruling of the learned trial judge who sustained it, rests on the theory that the statute runs not from the day of the injury, but from the date of the last prior lease. 'This is erroneous. The cause of action for a continuing tort—and this is what the acts of the defendants constitute—accrues afresh from day to day, so that the statute of limitations commences to run each day against that day’s damage. Ho recovery can, therefore, be had for damages which arose more than six years prior to the commencement of the action. On the other hand, all damages sustained within