Hine v. New York El. R. Co.

• Decision Date: 07 April 1896
• Citation: 43 N.E. 414,149 N.Y. 154
• Parties: HINE v. NEW YORK EL. R. CO. et al.
• Court: New York Court of Appeals Court of Appeals

149 N.Y. 154

43 N.E. 414

HINE

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

Court of Appeals of New York.

April 7, 1896.

Appeal from superior court of New York City, general term.

Action by Charles S. Hine against the New York Elevated Railroad Company and others for damages to plaintiff's property caused by the construction of a railroad. From a judgment of the general term (28 N. Y. Supp. 66) affirming a judgment for plaintiff, defendants appeal. Affirmed.

Brainard Tolles, for appellants.

C. N. Bovee, Jr., for respondent.

O'BRIEN, J.

The judgment in this case awards to the plaintiff an injunction in the usual form, unless the defendants, within the time specified, pay to the plaintiff the rental and fee damages found by the court, and take in lieu thereof a conveyance from the plaintiff of the easements in use by the defendants and appurtenant to the property. The principal point urged in support of this appeal is that the plaintiff's title, at the time of the commencement of the action and at the trial, was not in such a condition as to entitle him to the injunction and the other relief awarded; that in fact he had divested himself of all substantial interest in the premises, and had become incapacitated from sustaining any consequential injury. This proposition is based upon a series of facts which appear in the record. The action was commenced on December 10, [149 N.Y. 158]1888. The plaintiff had then the legal title to the property, which he acquired in the year 1853, subject to an outstanding contract of sale. This contract was entered into on the 13th of February, 1886, between the plaintiff and one Stemme, whereby the former agreed to convey the premises to the latter at an agreed price. Subsequent to the commencement of the action, and on the 14th of May, 1890, in pursuance of this contract, the property was conveyed to Stemme. The complaint in its allegations ignored the existence of the contract entirely. The action was brought to trial in October, 1889, before the deed was given, and nothing seems to have been disclosed in regard to the contract. The plaintiff was successful in the action, obtaining the usual relief, with damages, as in the case now before us. The judgment (13 N. Y. Supp. 510) was subsequently reversed in the Second division of this court, and a new trial granted. 132 N. Y. 477, 30 N. E. 985. Pending the appeal the defendants applied to the court for an order staying the issue of the injunction awarded by the judgment. It seems that the motion was opposed by the plaintiff and one of the grounds upon which his opposition was based was that he desired to convey the premises to Stemme. The court, as a condition of granting the stay, required the defendants to enter into a written stipulation in the action, which was evidently intended to preclude them from raising any question in the future as to the plaintiff's right to maintain the action so far as such right was affected by the contract of sale or its actual performance. The defendants were evidently aware of the scope and effect of the stipulation, and the use to which it was about to be applied, as is indicated by a clause which they caused to be inserted in it, to the effect that it was given under compulsion of the court, and as a means of obtaining the right to review the judgment.

The material part of the stipulation, which is signed by the defendants' attorneys of record, is as follows: ‘Now, therefore, the defendants above named hereby jointly and severally stipulate that they will not, nor will either of them, take or prosecute any condemnation proceedings in relation to the property described in the complaint herein during the pendency of the said appeal; and the defendants also further stipulate that, in case the plaintiff shall deliver to the clerk of this court the conveyance of the easements of light, air, and access to said premises herein tendered to defendants, duly executed and acknowledged in escrow, then the defendants shall not, nor shall either of them, file or serve any supplemental answer, or apply for leave to file or serve any supplemental answer, or any answer embracing any supplemental matter, or prove, or offer to prove, upon any future trial in this action, or upon any proceeding to enforce judgment thereon, any transfer of interest of the plaintiff herein to the premises described in the complaint herein; and the defendants also stipulate and agree that, in case the plaintiff shall convey the said premises, or any part thereof, such purchaser may be joined with or substituted for the plaintiff herein with the like force and effect as if he had originally been the plaintiff herein.’ The plaintiff and Stemme, his grantee, then executed and delivered to the clerk in escrow a proper deed in compliance with the stipulation conveying the easements as therein specified. The defendants appealed to the general term from that part of the order which required the defendants to give the stipulation as a condition of the stay, but the order was affirmed. 23 N. Y. Supp. 187.

On the second trial, resulting in the judgment now under review, the plaintiff produced the conveyance to him of the property in 1853, and the court found that he became seised in fee of the premises under that deed. The defendants gave in evidence the contract and deed to Stemme, referred to, but they were admitted by the court for the sole purpose of adjusting the equities of the parties on questions of damages, and the court limited the damages to the date of the deed. The judgment provides that upon payment of the several amounts awarded as damages to the plaintiff the defendants shall not only be...