82 N.Y.S. 754 | N.Y. App. Div. | 1903
This is an appeal by the defendant from a judgment enjoining it from further maintaining and operating its elevated railroad in front of plaintiff’s property, No. 1325 Third avenue in the city of New York, unless within a certain time it pays to plaintiff the sum of $2,000 and interest from October 15, 1901, the date of the trial, as compensation for fee damages, and also the sum of $2,013.46 for-past rental damages from August 2, 1889 (a date six years prior to the commencement of this action), to the date of the trial, being at the rate of about $165 per year, which, together with costs and fee
■ The defendant contends that these damages are excessive, and that this action cannot be maintained because of the pendency of another action against this defendant by a former owner of the premises. One Kaufman Hirsh, father of the plaintiff, acquired title to the premises in question on the 2d of December, 1884. ■ On the 27th of December, 1893, he died in possession thereof, leaving a will by which he devised the same to the plaintiff in fee. Such, will was duly admitted to probate and the. executors appointed therein have duly qualified. On the 8th day of March, 1888, Kaufman Hirsh brought suit against the New'York Elevated Railroad Company for an injunction and incidental past damages on account of the construction, maintenance and operation of the elevated railway in front of the premises in question. That action never reached a trial. ■ On the 11th of July, 1895, the executors of the will .of Kaufman Hirsh assigned to the plaintiff all the cause of action owned by their testator for injury to the rental value of the premises, and plaintiff brought this action on the 2d day of August, 1895. By way of defense the defendant has pleaded the pendency of the former action brought' by Kaufman Hirsh.
The defendant by its'appeal presents two questions for our consideration : First, that the defense of a former action pending was erroneously overruled, and, second, that the damages awarded are excessive and contrary to the evidence. The former suit pending was properly pleaded, but such plea does not appear to have been urged upon the trial as a defense, nor was there any objection taken or motion made which raised such question. At the close of the whole case defendant’s counsel moved to dismiss the complaint upon the- ground that the plaintiff had failed to show pecuniary damages as the result of the construction, maintenance and operation of the defendant’s
' But even if these technical reasons were not to prevail, we are of opinion that the plea is insufficient as a defense. Kaufman Hirsh devised this specific property by his will to the plaintiff. By virtue of that will there was a complete devolution of the title to the plaintiff, unincumbered by any conditions whatever. If the ■ action brought by Kaufman Hirsh was then pending, it was in a dormant state and could only be made a live action by revival in the name of the party in interest. The personal representatives in such action took no interest therein so far as the equitable relief sought to be secured was concerned. The only interest which the personal representatives of Kaufman Hirsh took was in the claim for past damages. They, however, were not entitled to equitable relief, and as the action was in equity for injunctive relief, no right existed to Lave the suit revived in their name for the purpose of recovering past damages. It is well settled in the elevated railroad adjudications that an equitable action will not be continued for the recovery of damages where the right to the equitable relief in the party entitled to the past damages has ceased to exist; consequently, the only person in interest who could be substituted as the plaintiff in the action, or have the right to such substitution, was the plaintiff in the present action. (Code Civ. Proc. § 1522.) If resort had been had to revivorship and substitution, it might have resulted in reviving the equitable action in favor of the present plaintiff and the
I am, therefore, of opinion that the plaintiff was entitled to maintain this action and to recover therein not only the. main relief, but, as incident thereto, the past damages to which' he has acquired title. If, however, this conclusion should, be wrong, there is another and sufficient answer to the claim. In the complaint the plaintiff asked for the recovery of the past damages sustained by him and by his assignors. Such was the theory upon which the trial proceeded, and proof was given without- objection, upon this ground, of the amount of past damages sustained. The assignment through which the plaintiff took title to such. past damages was received in evidence without objection, and there was not the slightest intimation during the whole course of the trial that the plaintiff ¿ if entitled to recover at all, was not entitled to recover these damages. Conced edly, he could maintain an action at law for their recovery, and even though he was not entitled to recover in the equitable forum, yet it was quite competent for the defendant to waive its rights in this respect and consent to a litigation of the whole question. This it has done, and nowhere did it interpose objection thereto. The doctrine announced in Lynch v. Met. El. Ry. Co. (supra), therefore, finds precise application and concludes the defendant from raising any question in respect of such subject.
■ The amount that has- been awarded as damages, however, we think excessive. It is needless that discussion be had of this subject, as it announces no principle and furnishes -no precedent.
It follows that the judgment should be modified by reducing the fee damage to $1,500,.and the rental damage to $1,862.33, and as modified the judgment should be affirmed, without costs to either party in this court.
Patterson, O’Brien and Ingraham, JJ., concurred; Van Brunt, P. J., dissented.