6 N.Y.S. 488 | N.Y. Sup. Ct. | 1889
tan Elevated Bailway
When, in 1877 and 1878, the defendant the MetropoliCompany began to build its elevated railway, and bad
completed the same to Sixth avenue and Fifty-Third street, the plaintiff, together with his partner, Mr. Christy, were in possession of certain premises in Sixth avenue and Fifty-Third street under a lease which expired on the 1st of May, 1882, and which contained a privilege for a renewal. In May, 1879, the railway was leased to the defendant the Manhattan Bail way Company, by whom it has since been operated. Appurtenant to the leasehold éstate were certain easements of light, air, and access,-an unlawful trespass upon which the maintenance and operation of the defendant’s railroad constituted. In February, 1882, the plaintiff and said Christy began an action against these defendants in the superior court to recover the damages entailed upon the property of the plaintiffs, namely, said leasehold, resulting from the violation of the plaintiffs’ said easement by the maintenance and operation of the defendant’s road. This action was tried, and upon the trial no claim was made for personal inj uries to the plaintiff, Taylor. It resulted in a verdict for the plaintiffs, but the judgment was reversed upon appeal to the general term. 50 N. Y. Super. Ct. 312, 333. Subsequently, in May, 1884, the partnership between the plaintiff and Christy was dissolved by mutual consent, and said Christy assigned to the plaintiff all his right, title, and interest in the said leasehold estate, and also in any damages for injuries to them caused by the trespass of the defendants. The plaintiff thereupon, by leave of the court, served a supplemental complaint, in which he also claimed damages for personal injuries sustained by him. The defendants demurred, and the demurrer was overruled,
In 1887 the plaintiff began this action, setting up in his complaint the business which he had been carrying on in the premises in question, and that by reason of the noise caused by operating the defendants’ road, and the smoke, dust, and dirt, stench, and gas and vapor of steam arising therefrom, in August, 1879, the plaintiff was made ill thereby, and suffered much personal discomfort and loss of health, which resulted in October, 1881, in a permanent injury to his ear and nervous system, and caused, in 1884, an almost total loss of the sight of both eyes, and prostration of the nervous system, which condition has continued until the present time. The defendants in their answer-set up, among other things, that the action had not been commenced within six years from the time at which the cause of action arose, and as a bar to the maintenance of the action the judgment in the superior court. Upon the trial of this case the complaint was dismissed, upon the grounds above mentioned, and from the judgment thereupon entered this appeal is taken.
It seems to us reasonably clear that the judgment in the superior court was not a bar to the maintenance of this action. Injuries resulting from a wrongful act or a series of acts may be both to property and person. Where the property belongs to two persons, and the personal injury is suffered by one, it would appear that the cause of action cannot be united. In the case at bar the property injured belonged to the plaintiff and his partner. They brought suit to recover the damages sustained by them arising from the trespass of the defendant. In such an action the personal injury received by one of the plaintiffs resulting from such trespass cannot be recovered. The subsequent acquisition of the whole right of action by the plaintiff, Taylor, cannot alter this proposition, because the question whether items of damage must be included in an action depends upon their ownership at the time of the commencement of the action. Conceding it to be true that if Taylor had been the owner of these leasehold premises, and had brought an action lo recover damages resulting from the trespass by the defendants upon the easement, that he would have been required to include injuries to persons as well as to properly, and that he could not have severed the claims for such injuries because the damages arose from the one continuing trespass, yet in the case at bar, as already seen, Mr. Taylor was not the sole owner of the damages to the property, and he only became such sole owner after the action had actually been once tried. They could not have united the personal injuries suffered by Taylor with the cause of action arising from the injuries to the property of the copartnership, and the subsequent acquisition by Taylor of this whole claim did not in any respect change his legal right.
. The question presented by the statute of limitations is a more serious one. It is undoubtedly true that the operation of the railroad by the defendants was a continuing trespass, and that successive actions might be brought to recover the damages resulting from such trespass; and recognizing the rule laid down in Secor v. Sturgis, 16 N. Y. 548, that in the case of torts each trespass or conversion or fraud gives a right of action, and but a single one, however numerous the items of wrong or damage may be, such rule has no
It will thus be seen, upon a consideration of this evidence, that all that occurred subsequent to September, 1881, were the natural results arising from injurie^received prior to that time, and that there is no evidence whatever from which an inference can be drawn that any additional injuries have been incurred by the plaintiff subsequent to the time when these serious developments manifested themselves. Although it is entirely true that the maintenance and operation of the defendants’ road was a continuing trespass, yet, unless the evidence shows that by reason of that trespass separate and distinct injuries have been inflicted, then the injuries resulting from the trespass must relate back to the time when the injuries were first inflicted and the cause of action originally arose. Subsequent attacks of inflammation, and subsequent pain and suffering, which must clearly be attributed to the condi