Koehler v. New York El. R. Co.

• Decision Date: 06 June 1899
• Citation: 159 N.Y. 218,53 N.E. 1114
• Parties: KOEHLER et al. v. NEW YORK EL. R. CO. et al.
• Court: New York Court of Appeals Court of Appeals

159 N.Y. 218

53 N.E. 1114

KOEHLER et al.

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

Court of Appeals of New York.

June 6, 1899.

Appeal from supreme court, appellate division, First department.

Action by David M. Koehler against the New York Elevated Railroad Company and another. Morris Goldstein was joined as additional plaintiff. From a judgment of the appellate division affirming a judgment for plaintiffs (41 N. Y. Supp. 209), defendants appeal. Affirmed.

Edward C. James, for appellants.

Edward A. Hibbard, for respondents.

BARTLETT, J.

This is one of the usual elevated railroad suits, praying for fee and rental damages, and injunction. Koehler was originally sole plaintiff, but pending the action he conveyed to one Goldstein. On the 15th day of September, 1894, the supreme court made an order joining Goldstein as an additional party plaintiff. The defendants had notice of the motion, and contested the same. The trial of the cause began on the 12th day of February, [159 N.Y. 221]1895, some five months after Goldstein was brought in as a party plaintiff, and resulted in a judgment for the plaintiffs, which required that, upon tender of the sum found as the value of the easements, the plaintiffs were to deliver a conveyance and release. The defense rested upon two principal points at the trial: (1) That one Martin Nasher, who formerly owned the premises in question, No. 520 Third avenue, in the city of New York, had consented to the erection of the railroad structure in front of the premises at a time when he was the owner of the fee; (2) that the plaintiff Koehler, by having conveyed his interest in the premises pending the litigation, had deprived this suit of its equitable features, and could only recover in an action at law for his rental damages during the period of his ownership. This second defense was raised at the opening of the trial, after proof of conveyance from Koehler to Goldstein, when the defendants' counsel made a motion, in substance, that it appeared Koehler had conveyed the property which was the subject of the action, and the complaint, as to him, be either dismissed, or his right of action, if there was any, for past damages, be sent to a jury for trial, upon the specific ground that, having transferred the title to his property, there is no longer a basis for the granting of the injunction with respect to any claim which he may have against the elevated railroad, and upon the further ground that there can be no unity of interest between Koehler and Goldstein with respect to past damages. The court denied the motion, and the defendants duly excepted.

As to the first defense,-that Martin Nasher, the former owner of this property, had consented to the erection of the elevated structure,-it is presented upon the following state of facts: Nasher became seised of the premises as sole owner in 1860, and sold it in February, 1887, to one Lese. Under the constitution and statutes then existing, the contemplated construction of the Third Avenue Elevated road depended upon the consents of certain abutting property owners, or, in lieu thereof, the determination of commissioners to be appointed by the general term of the supreme court, approving the construction of such railroad, and the confirmation of such approval by the court. In December, 1875, Nasher was applied to, as an abutting owner, to sign the consent for the construction of the railroad, but refused to do so. This was the case with many other property owners, and the result was that a sufficient number could not be obtained. Thereupon commissioners were appointed by the court, and they proceeded with their duties in the premises. In the month of February, 1876, a petition of certain of the owners of property along the route of the proposed elevated railroad was addressed to the commissioners, which was signed by Nasher, among others, and reads: ‘New York, February, 1876. To the Commissioners [naming them]: The undersigned, owners or occupants of property on the line of the New York Elevated Railroad, as designated by the rapid-transit commissioners appointed for the city of New York under chapter 606 of the Laws of New York under year 1875, understanding that said road is to be constructed over the center of the street or avenue in Third and Eighth avenues, and on such other portions of said line as it is practicable so to construct said road, earnestly request your honorable body to determine that such road ought to be constructed and operated on the route so designated.’ The learned appellate division (Mr. Justice BARRETT writing the opinion) held that this petition did not amount to a consent. The petition is not addressed to the railroad company, and...