raise collateral matters and involve issues not concerned in this case. The first, second, third, fourth and fifth assignments of error are sustained. * * *

We do not feel, however, that the qualification of defendant's fourth point for charge, or the answer to plaintiff's fifth point, present sufficient cause for reversal. But, by reason of the errors set forth in the first, second, third, fourth, and fifth specifications, the judgment is reversed with a venire facias de novo.

EPSTEIN COAL CO. v. SOLVINSKY.

(Supreme Court of New York, Appellate Term, 1908. 110 N. Y. Supp. 351.)

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by the Epstein Coal Company against Solomon Solvinsky. From a judgment in its favor, plaintiff appeals. Reversed, unless defendant stipulate to a modification of the judgment, in which event the judgment, as modified, is to be affirmed.

Argued before GILDERSLEEVE, P. J., and GIEGERICH and GREENBAUM, JJ.

GREENBAUM, J. There is no legal basis for allowing the second counterclaim. Manifest error was committed in permitting testimony as to the probable amount of shortage in the receipt of 110 tons. of coal, and for which payment had been made as for full weight.

The mere fact that a janitor testified that, for the same period during one year, the same furnace, the same number of tenants, the same heating apparatus, and the same amount of steam were in use as in the succeeding year, would not justify the conclusion that the use of 25 tons per week during the succeeding year as against 20 tons per week in the previous year is proof that the coal delivered at the later date must have been short in weight. There are too many elements of uncertainty in the comparative conditions. The assertion that the same amount of steam was used during each of the two years is not founded upon any facts. It is a mere conclusion of the witness. To determine that fact it would be necessary to present accurate data of the steam pressure, taken at many different times each day during both periods, and even then the quantity of coal used in any given day must necessarily depend upon the temperature, the care taken in the management of the furnace and the steam-heating apparatus, the quantity of coal put into the furnace, the burning qualities of the coal, and doubtless many other conditions. The testimony was of the most speculative character and clearly inadmissible.

The circumstance that the two tons of coal weighed by the inspector of weights showed a shortage might raise a suspicion that coal there

tofore delivered was also short in weight; but it is far from legal proof that such was the fact.

The evidence in support of the first counterclaim would be sufficient to uphold the finding of the court as to that claim, and if the respondent will stipulate to a modification of the judgment, by allowing the amount of plaintiff's claim, with interest, less the amount of the second counterclaim, to wit, $20, the judgment, as modified will be affirmed, without costs in this court to either party; otherwise, it will be reversed, with costs to the appellant to abide the event. All concur.

II. Relation of Other Sales to Proof of Value $

In re THOMPSON, Commissioner of Public Works.
In re BUTLER.

(Court of Appeals of New York, 1891. 127 N. Y. 463, 28 N. E. 389, 14 L. R. A. 52.)

Appeal from supreme court, general term, second department. Application of Hubert O. Thompson, commissioner of public works, etc., to extinguish certain water-rights for the use of the city of New York. The award of commissioners appointed to assess damages was affirmed by the special term, and again by the general term. Claimant, Butler, appeals. PARKER, J.

The only exception to which our attention. is called relates to an effort on the part of the owner to prove what had been paid by the petitioner for water-rights appurtenant to a neighboring parcel on the same river. At folio 7467 the counsel for the owner offered to prove that the city of New York purchased from Robert White the right to divert the waters from one-half of the water-shed of the Bronx river, and paid him the sum of $21,991.66 for such rights, and his privileges in connection with a certain mill upon what is known as the "Powder-Mill Property" at Scarsdale. The commission declined to rule on the offer, at the same time, by its chairman, saying, in effect, that a ruling would be made as the evidence should be presented. In that connection no other evidence was offered, and the exception then taken is, of course, not available.

But, in view of the stipulation making the evidence as to all parcels applicable to any other, it is claimed that this appellant is entitled to the benefit of any exception taken to the rejection of evidence bearing on the question of the value of his water-power. We shall assume, without deciding, that this claim is well founded. Robert White

3 For a discussion of principles, see McKelvey on Evidence (3d Ed.) §§ 107, 108. A portion of the opinion is omitted.

was vested in fee with the riparian ownership in such premises at the time of the commencement of the proceedings to acquire title by the city. Pending the proceedings he died. Subsequently, pursuant to an agreement with his heirs, a conveyance was made to the city. Respecting the manner in which the proof was sought to be made, the owner offered in evidence the deed, which expressed a consideration. But, for the purpose of proving the price paid, it was not competent. Mayor, etc., v. McCarthy, 102 N. Y. 630, 8 N. E. 85. One or more witnesses were asked to state the sum paid, and, as the objection went solely to the competency of the evidence for any purpose, it must be assumed that the witnesses were competent to answer the question. And the question, then, is, was the rejection of the evidence as to the amount paid by the city for the White water-power error for which a reversal should be had?

This question has been presented to the courts of last resort in several of the states, but not with the same result. In Massachusetts, New Hampshire, Illinois, Iowa, and Wisconsin it is held that actual sales of other similar land in the vicinity, made near the time at which, the value of the land taken is to be determined, are admissible as evidence for the purpose of arriving at the amount of compensation. Gardner v. Brookline, 127 Mass. 358; Packing, etc., Co. v. City of Chicago, 111 Ill. 651; Town of Cherokee v. Land Co., 52 Iowa, 279, 3 N. W. 42; Railroad Co. v. Greely, 23 N. H. 242; Washburn v. Railroad Co., 59 Wis. 364, 18 N. W. 328. While in some of the other jurisdictions, notably Pennsylvania, New Jersey, Georgia, and California, it is held that sales of similar property are not admissible for the purpose of proving the value of property about to be taken. Railroad Co. v. Hiester, 40 Pa. 53; Railroad, etc., Co. v. Bunnell, 81 Pa. 414; Railroad Co. v. Ziemer, 124 Pa. 560, 17 Atl. 187; Railroad Co. v. Benson, 36 N. J. Law, 557; Railroad Co. v. Pearson, 35 Cal. 247– 262; Railroad Co. v. Keith, 53 Ga. 178.

The reasons assigned for the conclusion reached in the cases last cited are, in the main, that the test in legal proceedings is, what is the present market value of the property which is the subject of controversy? It may be shown by the testimony of competent witnesses, and on cross-examination, for the purpose of testing their knowledge respecting the market value of land in that vicinity, they may be asked to name such sales of property, and the prices paid therefor, as have come to their attention. But a party may not establish the value of his land by showing what was paid for another parcel similarly situated, because it operates to give to the agreement of the grantor and grantee the effect of evidence by them that the consideration for the conveyance was the market value, without giving to the opposite party the benefit of cross-examination to show that one or both were mistaken. If some evidence of value, then prima facie a case may be. made out, so far as the question of damages is concerned, by proof of a single sale, and thus the agreement of the parties which may

have been the result of necessity or caprice would be evidence of the market value of land similarly situated, and become a standard by which to measure the value of land in controversy.

This would lead to an attempt by the opposing party to showFirst, the dissimilarity of the two parcels of land; and, second, the circumstances surrounding the parties which induced the conveyance, -such as a sale by one in danger of insolvency, in order to realize money to support his business, or a sale in any other emergency which forbids a grantor to wait a reasonable time for the public to be informed of the fact that his property is in the market; or, on the other hand, that the price paid was excessive, and occasioned by the fact that the grantee was not a resident of the locality, nor acquainted with real values, and was thus readily induced to pay a sum far exceeding the market value. Thus each transaction in real estate claimed to be similarly situated might present two side issues, which could be made the subject of as vigorous contention as the main issue, and, if the transactions were numerous, it would result in unduly prolonging the trial, and unnecessarily confusing the issues, with the added disadvantage of rendering preparation for trial difficult.

Our attention has not been called to a case in this court where the question has been passed upon in the manner here presented, but there are a number of decisions indicating the tendency of the court to be against proving value by evidence of the selling price of similar property. In Huntington v. Attrill, 118 N. Y. 365, 23 N. E. 544, the defendants attempted to prove the value of certain sea-side property by showing the value of other property of the same general character situated in different places, and Judge Bradley, speaking for the court, said: "It may be that such evidence would have furnished some guide for estimate of the value of the property, but might not. Such evidence would present collateral issues, which might, and very likely would, involve a variety of considerations having relation to similarity or difference, and to advantages and disadvantages of the different properties in numerous respects, as compared with that in question. It. is quite well settled that evidence of that character is not admissible upon the question of the value of property in controversy."

The question was not necessarily before the court in Mayor, etc., v. McCarthy, 102 N. Y. 630-638, 8 N. E. 85; but Chief Justice Ruger, referring to the question whether the price paid on sales of real estate between individuals is admissible as evidence of value, said: "We think it quite clear, however, that such price is not, in any view, competent evidence of value." In Blanchard v. Steam-Boat Co., 59 N. Y. 292, the defendant attempted to show the value of a sunken steamboat by proving the value of other steam-boats with which she could be compared, and it was held that the evidence was not competent. In Langdon v. City of New York, 59 Hun, 434, 13 N. Y. Supp. 864, 866, the objection was that other evidence should be produced to establish

the fact sought to be proven, so that the question of the relevancy of the evidence was not before the court.

We are of the opinion that the value of property which depends upon the presence or absence of inherent qualities not necessarily present or absent in other and similar property cannot be proved by showing the price paid for such other and similar property. The value of property having a recognized market value, such as No. 1 wheat and corn, may, of course, be proven by showing the market prices; but the value of property which is dependent upon locality, adaptability for a particular use, as well as the use made of property immediately adjoining, may not be shown.by evidence of the price paid for similar property. Even under the Massachusetts rule, a reversal would not be justified because of the extent of the discretion vested in the judge or officer presiding at the trial to determine whether such evidence is admissible, depending, of course, on various elements, such as the nearness or remoteness of the time of sale; whether the premises are far separated; the condition of the property about the parcel sold, and the use made of it, which may have operated to enhance or diminish its selling value; the similarity of the property, not only as to description, but as to its availability for use. Chandler v. Jamaica Pond Aqueduct Corp., 122 Mass. 305; Gardner v. Brookline, 127 Mass. 358-363, and cases cited.

In point of time, the White sale was a year and one-half prior to the date when the offer was made to prove it. The White water-power was in actual use in the operation of a mill, while the water-power of Mr. Butler had not been utilized in any degree whatever. True, as much water will be diverted from the Butler property as the White property, but it does not follow that the respective water-powers are of equal value. The value of a water-power depends on its availability for use; and, as a matter of common observation, that at certain points along a stream the water-power can be more readily and cheaply made available for industrial purposes than at others. So, if appellant's contention as to the admissibility of evidence of that character could be allowed, we should necessarily reach the conclusion that the nature of the evidence offered as to similarity was not of such a character as to authorize a court to hold, as a matter of law, that the commission improperly exercised their discretion in refusing to admit proof of the price paid for the White parcel.

The order should be affirmed. All concur.

THROCKM.EV. (2D ED.)-13