Allen v. New York El. R. Co.

• Decision Date: 11 December 1894
• Citation: 144 N.Y. 174,38 N.E. 997
• Parties: VAN ALLEN v. NEW YORK EL. R. CO. et al.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 174

38 N.E. 997

VAN ALLEN

v.NEW YORK EL. R. CO. et al.

Court of Appeals of New York.

Dec. 11, 1894.

Appeal from common pleas of New York city and county, general term.

Action by George W. Van Allen against the New York Elevated Railroad Company and another for damages, and to enjoin the operation of an elevated railroad. From a judgment of the general term (22 N. Y. Supp. 704) affirming a judgment in favor of plaintiff, defendants appeal. Affirmed.

Earl, J., dissenting.

Reuben Leslie Maynard, for appellants.

J. Aspinwall Hodge, Jr., for respondent.

O'BRIEN, J.

This was the usual action by the owner of real estate to restrain, by bill in equity, the further operation and maintenance of the defendants' elevated railroad in front of his premises in East Thirty-Fourth street, in the city of New York, and for the recovery of the damages caused thereby. The cause was referred by stipulation, and the referee reported that the plaintiff was not entitled to restrain the operation and maintenance of the road, but to judgment for damages only. The defendants' counsel insists that, upon the conceded facts, the complaint should have been dismissed, and judgment given for the defendants. The issues were joined in the action on the 2d day of November, 1889. On the 15th day of December, 1890, the plaintiff conveyed the premises, retaining no interest in them, and without, in terms, reserving the cause of action. On the [144 N.Y. 177]10th of February, 1891, the counsel for the respective parties made a written stipulation referring the issues in the action to a referee to hear, try, and determine, upon which an order of reference was duly entered, but the defendants' counsel was then ignorant of the fact that the plaintiff had conveyed. On learning that fact, they made a motion to the court in which the action was pending to vacate the order, which was denied, and on appeal to the general term the order denying the motion was affirmed. In this decision the defendants have apparently acquiesced, as no appeal was taken to this court. The cause was brought to trial before the referee on the 29th of January, 1892; and on the trial the defendants' counsel requested him to dismiss the complaint, on the ground that the plaintiff had conveyed the property during the pendency of the action, and there was no longer any basis for the maintenance of an action in equity by the plaintiff for an injunction, as that right had passed to his grantee; that the only claim that the plaintiff had, after the conveyance, was for past damages, and as to that there was an adequate remedy at law. The referee was also requested to send the case to a jury for trial. These several motions were denied, and the defendants excepted. The referee, in his report, held and decided that at the time of the commencement of the action, and down to the time of the conveyance, the plaintiff was entitled to the injunction prayed for in the complaint, but that right was lost by the conveyance while the suit was pending. He held, however, that the plaintiff was entitled to recover his damages from a date six years prior to the commencement of the action to the time of the conveyance, which he found to be $2,500, for which sum he directed judgment to be entered. To this finding and conclusion the defendants' counsel excepted. It was assumed by the judgment below that the plaintiff's right to prosecute the action for an injunction did not survive the conveyance, but passed to his grantee, and could thereafter be prosecuted only in his name. Counsel on both sides, in the argument in this court, have also assumed that this proposition is correct. So far as this case is concerned,we are relieved from any further examination of that question. McGean v. Railway Co., 133 N. Y. 9, 30 N. E. 647; Code, § 756.

The only point to be determined is whether the plaintiff had still the right to prosecute the action for the recovery of his damages. It is contended in behalf of the defendants that the right to the injunction was the only feature of the case that conferred jurisdiction originally upon a court of equity; and since that element of the controversy has disappeared, in consequence of the conveyance, the referee should have dismissed the complaint. The facts showing the right to the injunction are undoubtedly the basis for equitable relief in such cases, and the claim for damages is an incident which equity draws into the litigation in order to prevent a multiplicity of suits, and to completely adjust all the rights of the parties. Of course, it is not meant by this to assert that a claim for damages to real property is not in itself a complete and substantial cause of action. When united in the complaint with a cause of action which entitles the party to equitable relief by enjoining a trespass or continuing injury to the same property, it then becomes an incident to the main relief, not in itself sufficient to appeal to the peculiar jurisdiction pertaining to courts of equity. Lynch v. Railroad Co., 129 N. Y. 274, 29 N. E. 315;Shepard v. Railroad Co., 131 N. Y. 215, 30 N. E. 187; McGean v. Railway Co., supra; Hunter v. Railroad Co., 141 N. Y. 281, 36 N. E. 400. The order of reference conferred power upon the referee to determine all the questions in the case, and this power was not affected by the fact, which appeared upon the trial, that the right to the injunction, upon which alone the jurisdiction of equity depended, had been eliminated from the case by the conveyance. He could still go on and dispose of every claim which the plaintiff had, and which was embraced within the allegations of the complaint, whether the claim was of a legal or equitable nature. The defendants were not entitled to a jury trial, for the reason that they had waived it by consenting that the claim for damages should be referred with the claim for an injunction, and the fact that the latter had been transferred to another by the conveyance, at the trial or during the pendency of the action, did not deprive the referee of jurisdiction so long as any cause of action remained. The right of trial by jury having been waived, there was no longer any question except whether the...