62 N.Y.S. 333 | N.Y. App. Div. | 1900
On the ilth of December, 1890, the plaintiff was the owner of the premises in front of which the defendant’s road had been erected and was then operated, and he brought this action to obtain the usual injunction and damages for the injury to his easement. Issue was joined on the 17th of August, 1892. On the 13th of January, 1893, the plaintiff conveyed the premises to one Eosenfeld, but in the deed has reserved to himself all causes of action for damages to the rental value of the premises arising from or in any way connected with the construction or maintenance of the defendant’s railroad. In October, 1899, a motion was made to bring in Eosenfeld as a party defendant and for leave to serve a supplemental complaint, it being made to appear that he refused to be a party plaintiff. This motion’ was granted, and from that order this appeal is taken.
The papers upon which the motion was made were clearly deficient, because no copy of the proposed supplemental pleading was served, and for that" reason the order should be reversed, if for no other. But we think that upon the merits also the order was erroneous. When this action was brought the plaintiff was the owner of the property, and had an interest in procuring, not only the equitable relief sought, blit damages for the trespass already committed. When, however, he had sold the property he had no further interest in restraining the continuance of the trespass, and the only right that was left to him was to recover for the damages sustained by the trespass previously committed. (Hutton v. Met. El. R. Co., 19 App. Div. 243, and cases cited ; Lindenheim v. New York El. R. R. Co., 28. id. 170; Mooney v. N. Y. El. R. R. Co., 13 id. 380.)
It has also been held in this court in just such a case as this that an order’ giving the plaintiff leave to join as a party defendant his subsequent grantee could' not be sustained, and that order was reversed. (Mooney v. N. Y. El. R. R., 13 App. Div. 380.)
The. principle winch obtains in this case is entirely clear. The owner of the premises, as long as he retains the title, has an interest in restraining the trespass which affects the value of his property. He has also a right to bring an action for the damages he has sustained by reason of these trespasses. The right of action for an injunction is an incident of the ownership of the property. The right of action for damages is personal to the owner and still remains with' him after he has disposed of the property, and when he has ceased to be the owner it is all there is left of his cause of action, for as he has no further interest in the premises he has no right to ask for an injunction, but for the damages he has already suffered he may still maintain his suit; and if he has already begun a suit for an injunction and damages, while he is no longer entitled to the injunction because he has ceased to be the owner, he may still maintain the action for the damages. (Pegram v. N. Y. El. R. R. Co., 147 N. Y. 135.)
He may bring a suit to enforce it; he may negotiate with the trespasser to stop the trespass or to" pay him for the privilege of continuing it; he may sue for damages for it, from time to time, without any effort to restrain its further commission, or he may, if he sees fit, stand by and permit the commission of the trespass without an effort to restrain it or recover .damages for it. "Whatever he may do, it does not affect the right of the former owner to sue for his damages, and that right can be determined without his presence, and consequently he is not either a necessary or proper party within section 452 of the Code of Civil Procedure. If he sees fit to enforce his rights he is entitled to do so in an action brought by him, which he can control, asking for any of the various kinds of relief to which he is entitled, and being in a position to continue the action or to settle it at his own will.
I apprehend that there is neither precedent nor principle for compelling him if he does not choose to bring his action to come into the case as defendant, and thus be bound by a judgment for which he does not ask and where his rights are determined in a suit he has not brought and cannot control. It would seem that these considerations were controlling, • but the plaintiff relies upon a dictum contained in the recent opinion of the Court of Appeals in the case of Koehler v. N. Y. El. R. R. Co. (159 N. Y. 218, 225). In that ease it is said by the learned judge delivering the opinion of the court, that where the plaintiff in an ordinary equity suit against an elevated railroad company conveys the property affected by the litigation he may make a timely motion upon "due notice to the defendant for an Older bringing in his grantee as an additional plaintiff, oras a defendant if he refuses to be a plaintiff, and upon the record as so amended the case may proceed to trial upon all the issues on the equity- side of the court. The facts in that cáse were that Koehler being the
The order bringing in Rosenfeld as a defendant is, therefore, .reversed, with ten dollars costs -and disbursements, and the motion denied, with ten dollars costs.
Van Brunt, P. J.,' Patterson and O’Brien JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.