Drucker v. Manhattan Ry. Co.

• Decision Date: 12 January 1915
• Citation: 213 N.Y. 543,108 N.E. 74
• Parties: DRUCKER v. MANHATTAN RY. CO. et al.
• Court: New York Court of Appeals Court of Appeals

213 N.Y. 543

108 N.E. 74

DRUCKER

v.MANHATTAN RY. CO. et al.

Court of Appeals of New York.

Jan. 12, 1915.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Mary Drucker, executrix of Ephraim Drucker, deceased, against the Manhattan Railway Company and others. From a judgment of the Appellate Division (161 App. Div. 165, 146 N. Y. Supp. 41o), affirming a judgment dismissing the complaint, entered on a decision after a trial at Special Term without a jury, plaintiff appeals. Reversed with directions.

On the 1st day of June, 1887, the plaintiff's testator, the then owner, conveyed certain premises in the city of New York abutting on Division street to Justus H. Zimmerman by a deed containing the following clause:

‘The said Ephraim Drucker reserves for himself any and all claim and causes of action against all the world for any and all losses and damages to himself and to the premises above described on account of the construction and the present and future continuance of the elevated railroad structure in Division street and the past and future operation of the same and reserves to himself the easement now occupied and invaded by the said elevated railroad and the operation of the same.’

On the 29th of May, 1888, Zimmerman conveyed to the defendant Davis by full covenant warranty deed, in which there was no mention of the said reservation. On the 18th of October, 1888, the plaintiff's attorney wrote to the defendant Davis inquiring if she would be willing to have him commence a suit in her name as plaintiff, either alone or jointly with the plaintiff's testator, to recover the damages reserved as aforesaid. The defendant did not reply to the letter. This action was begun by service of the summons on the defendant railway companies on the 22d of November, 1888, and on the defendant Davis on July 19, 1889. She did not appear in the action until June 19, 1910, when she served a notice of appearance. Prior thereto and on May 31, 1910, the plaintiff's attorney had requested her to execute the necessary releases required by the Manhattan Railway Company, in which the Metropolitan Elevated Railroad Company was merged, and its successor, the Interborough Rapid Transit Company, to effect a settlement. On the 27th of June, 1911, a stipulation was entered into between the plaintiff and said companies, in which it was agreed that the damages, both rental and fee, to which the plaintiff should be entitled, if any, including costs and counsel fees, should be fixed at $7,250, which fixation of damages was to apply only in case the plaintiff procured a release from the defendant Davis or an adjudication that she had no interest in such damages. On the 15th of December, 1911, a stipulation was entered into between the said defendant Davis and the railway companies, in which it was agreed that, in case it should be adjudged in this action that the plaintiff is entitled to no rental damages for a period subsequent to May 31, 1888, and no fee damages as an alternative to an injunction, then the defendant railway companies should pay for a conveyance of the easements occupied by them, and a release of any and all damages, the sum of $8,625, which was to include costs and counsel fees, of which sum $1,375 was to be for the fee and rental damages caused by the alterations and additions to the elevated railroad structure. On the 19th of July, 1911, the plaintiff was given leave to serve a supplemental complaint on condition that the defendant Davis be allowed to answer, and upon the issues framed by the supplemental complaint and the answers thereto, the case came on for trial. The defendant railway companies raised no question as to the right of the plaintiff to recover, except by a motion, stated to be formal, at the opening of the case to dismiss the complaint, and at the close of the evidence counsel for the railway companies stated:

‘That it is willing to have the sum mentioned in the stipulation offered in evidence apportioned among the other parties to the action as damages in any manner which the court deems proper.’Roger Foster, of New York City, for appellant.

Isaac E. Bermant, of New York City, for respondent Davis.

MILLER, J.

(after stating the facts as above). The learned justice at Special Term ruled on the authority of Pegram v. N. Y. Elevated R. R. Co., 147 N. Y. 135, 41 N. E. 424, and Western Union Telegraph Co. v. Shepard, 169 N. Y. 170, 62 N. E. 154,58 L. R. A. 115, that the plaintiff could not maintain the action, even though the defendant Davis was chargeable with notice of the reservation in the deed to her grantor. The appellate Division went further and held on the authority of Maurer v. Friedman, 197 N. Y. 248, 90 N. E. 814, and Miller v. Clary, 210 N. Y. 127, 103 N. E. 1114, that said defendant was not bound by said reservation. After determining precisely what the rights of the parties are, we shall be better able to decide whether they may be enforced in this suit.

[1] The reservation was in terms of the easement ‘now occupied and invaded’ by the elevated railroad as well as of all damages present and future caused by the construction and future continuance of the elevated structure and the past and future operation of the railroad. Whilst an easement cannot exist apart from the land to which it is appurtenant, and therefore could not technically, as such, be reserved from the grant (Pegram v. N. Y. Elevated R. R. Co., supra; Shepard v. Manhattan Railway Co ., 169 N. Y. 160, 62 N. E. 151;McKenna v. Brooklyn Union El. R. R. Co., 184 N. Y. 391, 77 N. E. 615), the language employed shows plainly that the parties intended that the grantor should reserve the right to all damages caused and to be caused by the construction and operation of the elevated railroad, as it then existed, both rental damages for the trespass and fee damages for the permanent occupation, in lieu of an injunction. The Story Case, 90 N. Y. 122, 43 Am. Rep. 146, was decided in 1882. In that case a reasonable time was allowed the defendant to acquire the easement by condemnation or, agreement. It had been decided in Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423, 430, that a court of equity had jurisdiction to grant full damages for a permanent occupation, or in the alternative, an injunction . In that case the court said that on performing the condition the defendant would become ‘purchaser of the land with rights not inferior to those obtained by appraisement and payment of damages under the statute.’ In Lahr v. Metropolitan El. R. Co., 104 N. Y. 268, 10 N. E. 528, full damages were allowed in an action at law, the parties having agreed upon the rule of damages, and later it became the settled practice in the elevated railroad suits to award in equity rental damages for the trespass and fee damages in lieu of an injunction for the permanent occupation. New York National Exchange Bank v. Metropolitan El. R. Co., 108 N. Y. 660, 15 N. E. 445;Pond v. Metropolitan El. R. Co., 112 N. Y. 186, 19 N. E. 487,8 Am. St. Rep. 734;Galway v. Metropolitan El. R. Co., 128 N. Y. 132, 28 N . E. 479,13 L. R. A. 788.

The parties plainly contemplated, as this court has said, that the existing invasion of the easements of light, air, and access was permanent (see Kernochan v. N. Y. E. R. R. Co., 128 N. Y. 559, at page 565,29 N. E. 65;Hindley v. Manhattan Ry. Co., 185 N. Y. 335, at page 355,78 N. E. 276), and the grantor reserved the right to all damages resulting from such invasion. The trial court found:

‘It was the mutual intention of plaintiff's testator and said Zimmerman that the reservation contained in said deed from the former to the latter should apply to and affect only such amount or extent of future damages as might be sustained and suffered with the building upon said lot substantially as it then was.’

We do not so construe the agreement. Of course, the parties did not contemplate a greater invasion of the easements than then existed. But they did contemplate that the existing invasion was permanent, amounting to an appropriation pro tanto of the easements, precisely as though they had been condemned, and the grantor reserved all damages resulting from that appropriation, both temporary for the trespass and permanent for the taking. Presumably the consideration was reduced to the extent of the damages thus reserved. Whilst the grantor could not maintain a suit to enjoin the trespass after he had parted with the land (Pegram v. N. Y. Elevated R. R. Co., supra), as between himself and the grantee, he became equitably entitled to all damages which might be recovered in such a suit, awarded in condemnation or voluntarily paid by the railroad company, and upon the receipt or recovery thereof his grantee, or a subsequent grantee with notice, became a trustee for him. Western Union Telegraph Co. v. Shepard, supra.

[2] Was the defendant Davis chargeable with notice of the reservation in the deed to her grantor? The cases relied upon by the learned Appellate Division did not decide the point. The decision in Maurer v. Friedman, supra, was...