147 374 147 686 147 135 147 135 163 249 135 JOHN C. PEGRAM et al., as Trustees, etc., Appellants and Respondents, v. THE NEW YORK ELEVATED RAILROAD COMPANY and THE MANHATTAN RAILWAY COMPANY, Respond- d159 224 ents and Appellants, Impleaded with CHARLES E. BUTLER. 1. ELEVATED RAILROAD ABUTTING PROPERTY INJUNCTION. When the main relief sought in an action against an elevated railroad company is an injunction restraining the company from maintaining and operating its road in a street in New York city to the prejudice of the abutting property, the equitable nature of the action is not affected by the inclusion of a demand for past damages in the prayer for .judgment. 2. ACTION FOR INJUNCTION -SALE OF ABUTTING PROPERTY-RESERVATION. When, on the trial of such an equitable action against an elevated railroad company, it appears, by proof of the plaintiff's conveyance of the fee of the abutting property to a third person, not a party to the action, that the legal title is no longer in the plaintiff or in any one before the court, the plaintiff is deprived of the right to relief by way of injunction against the company or of an award for damages to the property subsequent to his conveyance; and such deprivation of right to relief is not prevented by a reservation, in the conveyance from the plaintiff, of a right to the damages which had been or might thereafter be caused to the property because of the defendant elevated railroad, together with the right to use the grantee's name, either in a release of the easements in the street to the railroad company, or in any suit against it. 3. DAMAGES — WAIVER OF JURY TRIAL. When, in such an action for an injunction with a prayer for damages, the defendant elevated railroad company has had knowledge of the plaintiff's conveyance of the abutting property for a long period before the trial, but has taken no steps to obtain a trial upon the law side of the court, and has suffered the plaintiff to proceed and give evidence upon the trial at an Equity Term without objection, it may be deemed to have waived the right to go to a jury on the question of past damages sustained by the plaintiff up to the time of his conveyance of the property; and, under such circumstances, the trial court, having jurisdiction both in law and equity, may settle the litigation between the parties, so far as entitled to do so, by an award of the rental damage sustained by the plaintiff while holding the legal title to the premises. 4. DAMAGES. When, in such an action, the determination of the trial court on the question of the amount of damages sustained by the abutting property has been upheld by the General Term, such determination should be left undisturbed on appeal if made without gross violation or abuse of principle. Reported below, 8 Misc. Rep. 425. (Argued May 29, 1895; decided October 8, 1895.) 147 f169 2165 169 2182 147 172 135 3414 CROSS-APPEALS from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made May 7, 1894, which affirmed a judgment entered upon a decision of the court on trial at an Equity Term. The plaintiffs brought this action in equity, to restrain the defendant railroad companies from maintaining and operating a railroad in front of the premises known as Nos. 202 and 204 Pearl street and No. 113 Maiden lane, in the city of New York; and they asked, also, for a judgment against the defendants for the damages sustained to the premises. When the cause first came on for trial, at an equity term of the Superior Court of the city of New York, it appears that the defendants put in evidence a deed, made by the plaintiffs after the commencement of their action, by which the premises in question were conveyed to one Schortemeier and a motion was made to strike the case from the equity calendar. The trial judge so ordered and his order being affirmed at the General Term, the plaintiffs appealed to this court therefrom. Upon the consent of the defendants, however, an order was made in this court reversing the order of the Superior Court. When the present trial came on at an equity term again, no objection was made by the defendants to its proceeding there and nothing had been done before the commencement of the trial to obtain a trial by jury of the issues in the case. Upon the present trial the plaintiffs put in evidence the conveyance of the premises described in the complaint which had been made to Schortemeier It contained the following provision : "Said parties of the first part reserving to themselves and their successors all damages and claims for damages now or hereafter caused said property or the present and future owners thereof against the Manhattan Railway Company and the New York Elevated Railroad Company and their successors on account of the construction and the present, past and future maintenance and operation of the elevated railroad in Pearl street and Maiden lane, and the right to convey or release in the name of the said party of the second part or his assigns to said railway companies, or either of them, or their successors, the easements in said streets now occupied and invaded by said railway companies, or either of them, and also the right to use the name of the party of the second part and his assigns (upon indemnifying them against costs) in any suit now or hereafter commenced against said railway companies, on account of the maintenance and operation of said elevated railroad in said streets, as now constructed, which right to use his and their names in such release, conveyance or suit, the party of the second part hereby contracts for himself and his assigns to allow to the parties of the first part." The trial proceeded and upon the conclusion of the plaintiffs' case, the defendants moved to dismiss the complaint upon the ground that the plaintiffs had no interest in invoking the action of the court, inasmuch as they had no estate or right in the land and would not be capable of taking any benefit.by injunction, if granted. The motion was denied and then the defendants gave their evidence in defense of the action. A judgment was ordered, which awarded to the plaintiffs the sum of $736.00 a year for the period of six years before the commencement of the action and until July 11th, 1889, which was the date of the conveyance to Schortemeier, as the damage inflicted upon the rental value of the premises. The injunction asked for in the complaint was denied; as were any damages sustained to the premises subsequent to July 11th, 1889. Both parties appealed to the General Term; where the judgment entered upon the order of the trial judge was affirmed and both parties now appeal to this court. The plaintiffs appeal because of the refusal of the trial court to grant their demand for an injunction against the maintenance and operation of the railroad, or any damages to the rental value of the premises from July 11th, 1889. The defendants appeal from so much of the judgment as awarded any damages to the plaintiffs. Roger Foster for plaintiffs. The plaintiffs had the right to proceed with the suit and obtain an injunction, or in the alternative the value of the easement appropriated by the defend ant railway companies. (McGean v. M. E. R. Co., 133 N. Y. 9; R. R. Co. v. Schutte, 103 U. S. 118.) The plaintiffs had the right to reserve the easement occupied by the railway companies and to enforce such reservation by a suit for an injunction. (McGee v. City of Brooklyn, 144 N: Y. 265; J. R. R. Co. v. Ruggles, 7 Ohio St. 1; T. F. Co. v. Carter, 61 Penn. St. 21; Goodrich v. Burbank, 12 Allen, 459; Poull v. Mockly, 33 Wis. 482; Lonsdale v. White, 21 Law Rep. 964; De Witt v. Harvey, 4 Gray, 486, 487; Amidon v. Harris, 113 Mass. 59; Buffum v. Harris, 5 R. I. 243 ; Mayor, etc., v. Law, 125 N. Y. 380, 390, 392; Price v. D. & S. P. R. Co., 17 Fed. Rep. 301; White v. M. R. Co., 139 N. Y. 19; Lewis on Em. Dom. 763, § 594; People v. M. S. R. R. Co., 3 Mich. 496; Smith v. McAdams, 3 Mich. 506; Noll v. D. R. R. Co., 32 Iowa, 66; Harris v. L., etc., Co., 9 B. Monr. 470, 472; Crollery v. M. & S. L. R. Co., 30 Minn. 541; Barlow v. C., R. I. & P. R. R. Co., 29 Iowa, 276; Rorer on Railroads, 322; N. J. M. R. Co. v. Van Syckle, 8 Vroom, 496; Pollard v. Maddox, 28 Ala. 321; Chase v. S. M. Co., 4 Cush. 152; C. H. & G. R. Co. v. Braden, 110 Ind. 558; Henry v. D., etc., R. R. Co., 2 Iowa, 288; State v. Rives, 5 Ired. [N. C.] 297; Hatch v. C., etc., R. R. Co., 18 Ohio St. 92; Nicoll v. N. Y., etc., R. R. Co., 12 N. Y. 121; Paul v. C., etc., R. R. Co., 51 Ind. 527; Davies v. S. L., R. C. & N. R. Co., 56 Iowa, 192; Varner v. S. L. & C. R. R. Co., 55 Iowa, 677; Henderson v. N. Y. C. & H. R. R. R. Co., 78 N. Y. 423; Me Rea v. L. B. & S. C. R. Co., 37 L. J. Eq. 267; Rose v. Bunn, 21 N. Y. 275; French v. Carhart, 1 N. Y. 96.) As regards the validity of the reservation, there is no distinction between the reservation of an easement and the reservation of a fee in a street. (City of Schenectady v. Trustees, etc., 144 N. Y. 241; Code Civ. Pro. $$ 1910, 3258; Dillenbeck v. Dygert, 97 N. Y. 303, 311-313; Holroyd v. Marshall, 10 H. L. Cas. 191, 209; City of Buffalo v. Pratt, 131 N. Y. 293; Story v. N. Y. E. R. R. Co., 90 N. Y. 122; Wynehamer v. People, 13 N. Y. 378; Leslie v. Lorillard, 110 N. Y. 519, 533; D. M. Co. v. Roeber, 106 N. Y. 473, N. Y. Rep.] V. Points of counsel. 482; P. & N. R. Co. v. Sampson, L. R. [19 Eq.] 462, 465.) If such an interest as the plaintiff reserved is not assignable nor capable of reservation at common law, this court, sitting in equity, will construe the contract in accordance with the plain intention of the parties, ut res magis valeat quam pereat, and will hold it equivalent to an agreement that the grantor shall have the right to use the grantee's name and rights in a suit for an injunction and damages, and to appropriate the proceeds of such suit for his own benefit. (Holroyd v. Marshall, 10 H. L. Cas. 191; In re Irving, L. R. [7 Ch. Div.] 419; Bergmann v. Macmillan, L. R. [17 Ch. Div.] 423; Haynes v. Thompson, 80 Maine, 125; Jones v. Mayor, 90 N. Y. 387; Powers' Appeal, 62 Penn. St. 443; Brown v. Bateman, L. R. [2 C. P.] 272; Ex parte Games, L. R. [12 Ch. Div.] 314; Collyer v. Isaacs, L. R. [19 Ch. Div.] 342; Rose v. Bunn, 21 N. Y. 275, 278; Dillenbeck v. Dygert, 97 N. Y. 311; Bolen v. Crosby, 49 N. Y. 183; Van Rensselaer A. & S. R. R. Co., 1 Hun, 507; 62 N. Y. 65; Ettinger v. P. R. C. Co., 142 N. Y. 189, 193.) Since the plaintiffs have reserved an equitable easement in gross, entitling them to all damages to the land in the past and in the future by reason of the maintenance of the defendants' elevated railway, there is no reason why they should not enforce this in a court of equity. (Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423; Wheelock v. Noonan, 108 N. Y. 179; Murdock v. P. P. & C. 1. R. R. Co., 83 N. Y. 579; Galway v. M. E. R. Co., 128 N. Y. 131.) The defendants could not avail themselves of the objection founded on the conveyance by the plaintiff without pleading the same by a supplemental answer, which they failed to do. (Harrington v. S. P. & S. C. R. R. Co., 17 Minn. 215; Jackson v. Colden, 7 Johns. 194; Covell v. Weston, 20 Johns. 414; Hastings v. McKinley, 1 E. D. Smith, 273; Rundle v. Little, L. R. [6 Q. B.] 174; Medbury v. Swan, 46 N. Y. 200; Holyoke v. Adams, 59 N. Y. 233.) The defendants waived their right to this objection by entering upon the trial without raising it. (Code Civ. Pro. § 1009; Van Allen v. N. Y. E. R. R. Co., |