15 N.Y.S. 149 | The Superior Court of the City of New York and Buffalo | 1891
The judgment appealed from restrains the defendants from
maintaining or operating their elevated railroad in front of plaintiff’s premises Nos. 148, 150, 152, and 154 East Forty-Second street, unless within a time fixed by the judgment they produce proof satisfactory to the court that they caused the plaintiff’s easements appurtenant to said property to be condemned and acquired according to law prior to the date of the judgment. The judgment also awards past damages with respect to said property. It is now claimed that the trial judge erred in granting injunctive relief as to said property, and in retaining jurisdiction of that cause of action for any purpose, because it was proved at the trial that the defendants had instituted condemnation proceedings, had procured the appointment of commissioners, had the value of plaintiff’s easements appraised, and had paid the award, and that the plaintiff had accepted the amount and waived all right of appeal. This claim is untenable for the following reasons: Prior to the trial the defendants had moved at special term for leave to serve a supplemental answer setting up these facts, and the motion had been denied. The issues had therefore to be determined upon the pleadings as they originally stood. At the time of the commencement of the suit the plaintiff had the right to injunctive relief, and the court had jurisdiction to grant it, and, as incidental to the right to equitable relief, the plaintiff had the right to recover his past damages. Under these circumstances the right of the plaintiff to recover his past damages could not be defeated by proof that during the pendency of the action the defendants had in part satisfied plaintiff’s claim. The defendants had no right, in such a case, to have the question of past damages tried by a jury. Sears v. Railway Co., 13 N. Y. Supp. 886, and Bergman v. Railwag Co., 14 N. Y.
