Van Deusen v. Young.

to the non-joinder of the widow, it is disposed of by the failure to present it by demurrer or answer. As to Stephen being an improper party, we think he was not, being in fact owner of the premises, and the fact is so found by the referee. As to Lawrence, jr., being an improper party, we think there is no such acquiescence or estoppel as forbids his uniting in the action. As to the suit being properly several, and not joint, we think the objection untenable. They are all owners, and jointly interested. The injury is to their common property, and the damage is common to all. They derive title from a common ancestor, and all together represent the estate which he had in his lifetime, and for an injury to which they may be regarded as his proper representatives. This is one of those cases where tenants in common may and ought to join. (6 Bacon's Abr. title Joint Tenants and Tenants in Common, K. Low v. Mumford, 14 John. 426. Decker v. Livingston, 15 id. 479.)

IV. It only remains to consider the objections to testimony. They are all substantially similar, to wit, that evidence of the comparative value of the premises with or without the wood and timber was improper: 1st. As furnishing no appropriate criterion of damage; and 2d, as founded on merely speculative opinion of the witnesses. But I think it was the proper test of an injury to the inheritance. (Harder v. Harder, 26 Barb. 409.) It was the test set up in the complaint, and established the amount of injury which the plaintiffs had sustained, better and with a nearer approach to accuracy, I think, than any other standard that could be adopted. At least it was not an improper mode of estimating the damages. Surely the damage would not be in all cases accurately measured by the market value of the wood or timber when cut. The trees might be a highly valuable appendage to the farm, for purposes of shade or ornament; there might be a very scanty supply for a farm of that size; or for other reasons they might have a special value as connected with the farm, altogether independent of, and superior to, their intrinsic value

Van Deusen v. Young.

for purposes of building or of fuel. As well might you remove the columns which supported the roof or some part of the superstructure of a splendid mansion, and limit the owner in damages to the value of these columns, as timber or cord wood, as to adopt the parallel rule in this case.

In arriving at a conclusion on this question of value, opinions of witnesses must necessarily be resorted to. Questions of value are always more or less questions of opinion. They are always resorted to in actions for breach of warranty of soundness to test the value between a sound and unsound animal; and so far as I know, the rule is universal, and without exception in all cases touching the value of any species of property, after a proper foundation is first laid by showing the acquaintance of the witness with this species of property. (Lamoure v. Caryl, 4 Denio, 370. Joy v. Hopkins, 5 Denio, 84.)

This was done, so far as I have observed, in every instance in the case before us. It was not indispensable that the witness should be a farmer. If he was a laborer, or a merchant, or a cooper, I suppose he was a competent witness to speak on this question, if acquainted with this property and with the value of lands in the neighborhood. There is no special science about the matter, which should limit the inquiry to eminent experts. In a single instance the question put assumed that the cutting and removal of the wood would diminish the value of the farm, and the inquiry was how much less it would be worth on that account. In strictness, the question was slightly objectionable; but it obviously did not mislead the witness, and resulted in no practical injury to the defendant, it being apparent from the residue of the examination of the witness, that in his estimation the diminution in value was serious and substantial. I do not think the judgment should be reversed for so slight an error, if it be one; the whole case demonstrating that it could have resulted in no detriment to the defendant. In one case also, it was assumed, as a part of the question, that the wood or timber

Van Deusen v. Young.

cut had been or would be taken by the defendant, and the defendant renewed the objection. In this I think there was an error. There had been evidence that some of the wood had been removed by the defendant; but independent of that, the plaintiff had a right to take the witness' estimate of value or damage upon that assumption; and if, in point of fact, contrary to the legal presumption, the wood cut by the defendant was not removed by him, the defendant could show that in diminution of the damages. And no injury could happen to the defendant; for if the plaintiff's recovery was based on the assumption that the wood was taken by the defendant, the effect of the recovery would be to vest title thereto in him.

Various cases are cited on the defendant's points to show that it is incompetent to ask the witness the direct question how much damage has been inflicted upon or sustained by the aggrieved party; or how much has accrued to him from a particular source. But this is a very different inquiry from those propounded to the witnesses in the case in hand; and in several instances, in the adjudicated cases, the objectionable character of the question is founded upon the tenacity of the examining counsel in persisting in a peculiar mode of putting the interrogatory. (See Giles v. O'Toole, 4 Barb. 261; Fish v. Dodge, 4 Denio, 312; Merritt v. Seaman, 2 Selden, 168; Morehouse v. Mathews, 2 Comst. 514; Norman v. Wells, 17 Wend. 137; Harger v. Edmonds, 4 Barb. 256.)

The following authorities will be found, I think, in substance to sustain the interrogatories to which exception was taken in this case: De Witt v. Barley, 5 Selden, 371. Lincoln v. Saratoga and Schenectady R. R. Co. 23 Wend. 425. Clark v. Baird, 5 Selden, 183. Westlake v. St. Lawrence Mut. Ins. Co. 14 Barb. 206. Cowen & Hill's Notes, 700. Lamoure v. Caryl, 4 Denio, 370.

I have thus reviewed all the material questions suggested on the written points, with as much care and skill as I have been able to command, without the benefit of an oral argu

Blattmacher v. Saal.

ment, and my conclusion is, that substantial justice has been done, and that the judgment of the court below should be affirmed.

[ALBANY GENERAL TERM, September 6, 1858. Wright, Gould and Hogeboom, Justices.]

BERTHA BLATTMACHER vs. JOHN A. SAAL, sometimes called JOHN SAUER.

A complaint, in an action for a breach of promise of marriage, alleged that the plaintiff being sole and unmarried, and competent to contract to marry, and the defendant representing himself to be sole and unmarried, and competent to contract to marry, the latter, in consideration of the plaintiff's promise to marry him, promised the plaintiff to marry her. It then averred that the plaintiff, confiding in such representation and promise, continued, and still was, unmarried; and that she had no knowledge or information to lead her to believe, that the promise and representations of the defendant were false or fraudulent; and it averred that the said representations were false and fraudulent, and made with the intention to deceive; that the defendant then was, and still continues to be, a married man; and that his promise to marry was fraudulent, and to the plaintiff's damage. Held that the complaint stated sufficiently the defendant's promise to marry, and his representation that he was unmarried, and competent to marry the plaintiff; and that it was unnecessary to allege that he knew his representation to be untrue.

Held also, that the complaint set forth a good cause of action; that if the plaintiff could not recover for the deceit and damage, she might, upon the contract and promise to marry, which implied and involved a promise and agreement that the defendant was competent, legally, to marry.

PPEAL by the defendant, from a judgment of the city court of Brooklyn. The complaint alleged that on or about the 1st day of May, 1857, the plaintiff, being then sole and unmarried, and competent to contract to marry, and the defendant representing himself to be sole and unmarried, and competent to contract to marry, and also representing

Blattmacher v. Saal.

his name to be John Sauer, did, in consideration of the promise of the plaintiff to marry said defendant, then faithfully promise to marry the plaintiff; and that the plaintiff, confiding in said representations and promise, hath from that time to this remained, and still is, sole and unmarried. That the plaintiff had no knowledge, or information sufficient to form a belief, that any of said representations of the defendant were false, or that said promise of the defendant to marry the plaintiff was fraudulent, at the time of the making of said mutual promise to marry. The plaintiff further alleged that the said representations of the defendant were false, and made with the intention to deceive and injure the plaintiff; the real name of said defendant being John A. Saal, and that he then was, for many years had been, and still is, a married man; and that the promise by said defendant to marry the plaintiff was fraudulent, and to the injury and damage of the plaintiff to the amount of ten thousand dollars, for which sum the plaintiff demanded judgment against the defendant, together with the costs of the action.

To this complaint the defendant demurred, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled by the city court, on argument; and no answer having been put in, judgment was ordered for the plaintiff, and her damages were assessed by a sheriff's jury at $5000

*G. Miller, for the appellant.

Gordon L. Ford, for the respondent.

By the Court, EMOTT, J. This complaint states sufficiently the promise to marry by the defendant, and his representation that he was unmarried, and competent to marry the plaintiff. It was obviously unnecessary to allege that he knew this representation to be untrue, when he is alleged to have been in