Rose v. Stewart

28 N.Y.S. 318 | N.Y. Sup. Ct. | 1894

FOLLETT, J.

The questions raised on this appeal arise on the exceptions filed to the findings and refusals to find facts, and the exceptions to the conclusions found and refused, and upon the exceptions taken to the exclusion of testimony offered by the plaintiff. The exceptions to the facts found and refused, and the exceptions to the conclusions of law found and refused, are not argued, but those taken to the exclusion of testimony are argued and relied on as grounds for a reversal of the judgment and for a new trial. The evidence contained in the record sustains the facts found and the conclusions of law, and fully justify the refusals to find facts- and conclusions requested by the plaintiff. The only questions remaining to be considered are whether the testimony offered by the plaintiff, and rejected by the court upon the defendants’ motion, was relevant to the issues, and, if relevant and believable, would it have justified a judgment for the plaintiff? Thomas McMullin, a witness called and sworn in behalf of the plaintiff, testified that he was a steel-plate photographer and printer, and occupied the second and fourth floors of 42 Cedar street (plaintiff’s premises) before and since the erection of the structures complained of. He was asked:

“Q. Did you have occasion, after that pipe was put up, to notice the relative amount of the light you received after it was put up, as compared with what you received in that easternmost window? Mr. Butler: I object to it, as calling for a conclusion of the witness. (Objection sustained. Exception.) Q. Did you notice, at any time after the standing pipe was put up, the light which comes in in the easternmost window on your premises? The Witness: Yes. Q. What, if anything, did you notice? Mr. Butler: That is objected to. (Sustained. Exception.) Q. Had you noticed the quantity of light which came in that window before the standing pipe—the smokestack—in the rear of 57 and 59 William street was put up? Mr. Butler: I object to it, on the ground that the witness has no means of determining. He is not an expert. (Sustained. Exception.) Q. State whether, after the erection of the standing pipe in the rear of the premises Nos. 57 and 59 William street, you observed any diminution of light coming in your easternmost windows. If so, state to the court how much the diminution was, as near as you can. (Objected to on the same ground. Sustained. Exception.) Q. State any facts in regard to the light coming in those windows before and after the erection of this standing pipe, and what were the differences. Mr. Butler: We object to it, on the ground that it calls for certain facts. He may state what the facts were at any time before and after. For him to determine whether there is a difference is objectionable. (Sustained. Exception.)”

Like facts were offered to be proved by this witness at folios 123, 125, and 135, and by John M. Coonan at folios 99, 100, 101, 108, 107, and 108, and by James B. Bose at folios 112 and 113, which were excluded on the objection of the defendants. The exclusion of this testimony was error. The vitJl issue of fact by which the rights of the litigants were to be determined was whether the defendants’ structures deprived the plaintiff’s building of “the light and air contemplated to be granted to or enjoyed by the said Lynde Catlin, his heirs and assigns.” The witness McMullin occupied part of the plaintiff’s building before and since the erection of the structures complained of, and was engaged in an occupation requiring light, and his business qualified him to judge of the quantity and quality of light received from the court yard before and since the erection of the structures objected to. It is not necessary that a witness should be a scientific expert, capable of accurately measuring the quantity of light, and of determining by scientific processes its quality, to qualify him to testify as to whether less light, and of a poorer quality, was enjoyed after a certain event. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.