
    Anson Phelps Stokes, Respondent, v. The Manhattan Railway Company, Appellant.
    
      Eminent domain — a grantee, pending a suit for an injunction and damages against an elevated railroad, cannot he compelled to he a party thereto — discretion in this matter, when exercised —.relative rights of the grantor and grantee — supplemental complaint—a copy thereof must he served with the motion papers.
    
    An owner of property abutting upon an elevated railroad in the city of New York who, during the pendency of an action brought by him to enjoin the maintenance and operation of the road, and for damages, conveys the property by a deed reserving to himself the right of action for damages tO' the rental value of the premises, is not entitled to have his grantee, against the latter’s will, brought in as a party defendant; in such a case the only right of action remaining in the plaintiff after his conveyance is that reserved for the rental damages, and the presence of the- grantee is not necessary to the final determi- . nation of such right.
    
      Koehler v. Kew York Elevated JR. B. Oo. (159 N. Y. 218), distinguished.
    
      It seems, that, if it is discretionary with the court in such a case to allow the grantee to be brought in, that discretion should only be exercised in a case where it is quite clear that the’-presence of the grantee is essential to a determination, of the rights of the original parties.
    The right Of action to enjoin the operation of the road is an incident of the ownership of the property, and when.the owner conveys it, abates as to him, while the right of action for damages is personal to the owner and survives the conveyance by him.
    On a motion for leave to serve a supplemental complaint a copy of thé proposed pleading must be served with the motion papers.
    
      Appeal by the defendant, The Manhattan Eailway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on. the 3d day of November, 1899, bringing in George Eosenfeld as an additional party defendant, and granting leave to the plaintiff to serve a supplemental complaint.
    
      Arthur O. Townsend, for the appellant.
    
      Edward W. Sheldon, for the respondént.
   Rumsey, J.:

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.)

The right to restrain a future continuance of the trespass belongs after the conveyance only to the grantee (Pappenheim v. Met. El. Ry. Co., 128 N. Y. 436); and that right in the grantee is not only as perfect as it was in the original vendor, but it is exclusive in him, and the grantor lias nothing to do with it. It is, too,, a new cause of action for an injury to the right of the grantee, which arose only after he had received the conveyance, and did not exist when this suit was begun. The rights of the two parties are entirely distinct. One has a cause of action for damages in a pending suit, and the other is entitled to maintain' an actipn for an injtinction on the equity side of the court. This action the grantee may bring if he chooses, but the question presented is ■ whether he may be compelled against his will to be joined as a party for the purpose of enforcing that cause of action. It has already been held that where one has conveyed the property reserving his right to damages for injury to the premises, he cannot by petition be’ joined as a party plaintiff in the action brought by his grantee for an injunction. (Shepard v. Metropolitan, El. R. Co., 82 Hun, 527; affd., 147 N. Y. 685.)

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.)

As he can recover in that action nothing but the damages,, all- of which belong to him when collected, it is not perceived how the presence of any other party is necessary for a final determination of the rights which can be adjudged in that action. The grantee who has taken title to the premises alone has any interest in obtaining an injunction. That right belongs to him exclusively. Nobody else has any interest in it. No one else can control it. (Pappenheim v. Met. El. R. Co., 128 N. Y. 436.)

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

owner of the premises had brought the usual action for an injunction and damages. Rending the action he conveyed the property, and then made a motion for leave to bring in the grantee as a plaintiff and for leave to serve a supplemental complaint. The grantee was apparently willing to be brought in and to have his rights settled in that action, and against the protest of the defendant the order bringing him in was made. No appeal was directly taken from that order, but the notice of appeal from the final judgment contained a clause to the effect that upon the argument of that appeal the order would be reviewed. Upon the argument of'this case in this court no question was made as to the propriety of the order, but in the Court of Appeals the question seems to have been raised by the suggestion that the defendant was entitled to a jury trial. This was met and answered by an allusion to the fact that the' defendant was guilty of laches by going to trial without demanding a jury until after evidence had been taken in'the case. The court-then went on to determine the case upon the merits and the conclusion reached is that, quoted above, So far as that conclusion determines the proposition required by the facts in the case it is undoubtedly binding on us as to the question it raised of the power of the court to bring in as a party plaintiff a grantee of the premises by a conveyance executed after the action for the injunction has been brought. But it does not determine, and it cannot determine, because the question was not presented, that such a grantee who had no desire to be plaintiff could be compelled as a defendant to submit to the litigation and determination of his rights which had arisen after the commencement of' the grantor’s action in a suit over which he had ho control. In the Koehler case the subsequent grantee was willing to be made a plaintiff and to have his rights determined in that suit. In this case he is not, and the order does not make him a plaintiff, brit brings him in as a defendant, so that he is sued and made subject to the liability for costs because he. happens to have a cause of action independent from that belonging to the plaintiff, and which he does not desire to litigate. For that reason the case of Koehler does not apply. But, in addition, that case can- only apply as to the power of this court to bring in a party; and even though it may be regarded as determining that this court has the power to bring in a party as a defendant under the circumstances revealed here, it cannot be deemed an adjudication as to the propriety of the exercise of that power which is discretionary with this court. Even if a person might thus be brought in as defendant, the discretion so to do should only be exercised in a case where it is quite clear that the rights of the original parties cannot be finally disposed of withoirt the presence of the grantee. That clearly is not this case, because the only right of the plaintiff is to have a judgment for damages, and these damages can be determined without the presence of Rosenfeld. Therefore,. in the exercise of its discretion, the court should have denied this motion.

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.  