
    Hyman Israel, Appellant, v. The Metropolitan Elevated Railway Company and the Manhattan Railway Company, Respondents. Elizabeth M. Anderson, Appellant.
    
      Eminent domain—right of a grantee of an abutting owner who has sued for an injunction and damages to be made a party to the action — discretionary.
    
    Hyman Israel, the owner of property abutting on an elevated railroad, brought the usual action for an injunction and damages. The action was tried in October, 1893, and the complaint was dismissed. An appeal was taken to the General Term of the Court of Common Pleas of the city of New York where, in January, 1895, the judgment below was affirmed; an appeal was then taken to the Court of Appeals, which court reversed the judgment and granted a new trial on the 18th day of April, 1899.
    June 6, 1896, Israel sold the property to one Stimpson. Two days later Stimpson sold it to one Cole, and December 7, 1899, Cole conveyed it to Mrs.- Anderson. Israel and Mrs. Anderson made an agreement that the fee and rental damages . should be divided between them in a certain proportion, and thereupon Mi's. Anderson made a motion to intervene as an additional party plaintiff and for leave to serve a supplemental complaint. Upon such motion it appeared that before the trial of the case the defendants had instituted proceedings to condemn the easements involved in the action, and that on November 23, 1892, it was adjudged that upon the payment to Israel of the sum of six cents; the defendants should be entitled to the easements.
    
      Held, that the motion was properly denied for the following reasons:
    
      Hirst, that if the condemnation proceedings were valid, they afforded an absolute answer to the moving party’s claim;
    
      Second, that Mrs. Anderson derived no cause of action, solely because of the conveyance from Cole, until her easements had been interfered with, and that no such interference had been alleged;
    
      Third, that so far as her interest was derived under the agreement with Israel; her right to be made a party to the action was governed by section 756 of the Code of Civil Procedure, which commits the matter to the discretion of the court.
    Appeal by the plaintiff, Hyman Israel, and by Elizabeth M. Anderson, the petitioner herein, 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 11th day of June, 1900, denying a motion to join Elizabeth M. Anderson as a party plaintiff in the action and for leave to serve a supplemental complaint.
    
      William B. Hornblower, for the appellants.
    
      Arthur 0. Townsend, for the respondents.
   Rumsey, J.:

This is the usual action against an elevated railroad company for injunction and damages. Israel, the plaintiff, was the owner of the premises on the 24th of April, 1891, when he brought this action. The answer was served on the 5th of May, 1891; the case was tried in October, 1892; the complaint was dismissed and the judgment dismissing the complaint was affirmed by the General Term of the Court of Common Pleas in January, 1895 ; an appeal was taken to the Court of Appeals where on the 18th of April, 1899, the judgment was reversed and a new trial granted, with costs. The new trial seems to have been granted upon the ground that the uncontradicted evidence showed that the plaintiff had sustained substantial injury to the premises and that he should have had an injunction and damages to a substantial amount.

Pending this appeal, and on the 6th of June, 1896, Israel sold the property to one Stimpson; two days afterwards Stimpson sold to Cole, and on the 7th of December, 1899, Cole conveyed to Mi’s. Anderson, who is now the owner in fee of the premises. Israel and Mrs. Anderson made an agreement that the fee and rental damages to be recovered should be divided between them in a certain proportion, and thereupon Mrs. Anderson, claiming to have acquired an interest in the action, brought this proceeding to be joined in the action as an additional party plaintiff and asked for leave also to serve a supplemental complaint. This motion was denied and from the order denying it this appeal is taken.

Before considering the case further it is well to determine the situation of the parties at the time this agreement was alleged to have been made. Israel, when he' brought this action, had undoubtedly the right to maintain it to secure an injunction and damages for the trespass committed by any interference with his easements of light, air and access down to the time of the commencement of the action.- The action, however, was in equity and the" damages could be recovered in it only as an incident to his right to equitable relief.

"When he had conveyed the premises his right to equitable relief was at an end, and all that he was entitled to from that time on was the damages which he had sustained by- reason of the trespasses committed before his action was begun. (Pappenheim v. Metropolitan El. R. Co., 128 N. Y. 436; Pegram v. Elevated R. R. Co., 147 id. 135 ; Saxton v. New York Elevated R. R. Co., 12 App. Div. 263.) After his conveyance, therefore, to Stimpson he had nothing left- by reason of which he could pursue these defendants except the right of action for damages for the trespasses.

He did not sell this right to Stimpson, nor did Stimpson have any right to. maintain an action for interference with the easements which belonged to him as owner of the easements unless that had taken place during the short time when he was the actual owner, that is, between the 6th and 8th days of June, 1896. When Stimpson sold to Cole on the 8th of June, 1896, he transferred no right to maintain an action to recover for trespasses that had been committed up to the time that Cole became the owner. Cole then, when lie became the owner of the premises on the eighth of June, had alone the right to maintain an action to restrain the trespasses committed between the dates when he bought and sold the property, and he alone could maintain an action for the damages for the trespasses committed during that same period.

But it appears that before the trial of the case in the Court of Common Pleas the defendants had taken proceedings, under the statute, to condemn these easements, and that this proceeding ended on the 23d of November, 1892, by which it was adjudged that upon the payment to Israel of the sum of six cents, and upon the confirmation of the report, the Metropolitan Elevated Railway Company should be entitled tq take possession of and use the easements appurtenant to Israel’s land for the purposes of its railroad. If these condemnation proceedings were valid, then whatever may have been the effect of them upon this action because they were not pleaded, yet against Stimpson and Cole and Mrs. Anderson they take away absolutely any right to sue this company for interfering with these easements. But it is said that these condemnation proceedings were void, and, therefore, they will not be further referred to except to suggest that if they happen to be valid they afford an absolute answer to any action which an)-- of the three grantees of Israel might bring to restrain the operation of the railroad.

But, passing that subject, it is apparent that Mrs. Anderson had no cause of action solely because of the conveyance by Cole to her, unless and until her easements had been interfered with after the conveyance had been received by her, which is nowhere suggested by her in the moving papers. All the right which she claims, if any, arose from the fact that at some time Israel made an agreement with her that the fee and rental damages to be recovered in the action should be divided between himself and Mrs. Anderson in a certain proportion ; and in her supplemental complaint, in which she presents all the rights for which she claims to be substituted in this action, she makes no claim that any easements of hers have been interfered with or that she has any equitable right to maintain this action, because she does not say that since she became the owner of these premises any easements that she is entitled to have been interfered with or taken away. Whether the failure to allege any interference with her easements arises from the fact that there has been no interference or because the condemnation proceedings were valid, so that she has no rights, is not material. The material point is that she makes in her supplemental complaint no claim that any rights of hers have been interfered with in this action.

Nor does she seek to be brought in to litigate any equitable, right which she has against these defendants. Her claim is simply one which she says exists because Israel has sold to her the fee and rental damages which he was entitled to recover by virtue of his original action. There can be no doubt that so far as the fee damages are concerned he had no right to recover anything, so that she takes nothing by virtue of any such assignment. Therefore, the only claim that she has here or that she can assert in this action is that she should have a certain portion of the damages which Israel had sustained because of the trespasses upon his easements down to the time when he began this action in 1891. Her case is clearly within the provisions of section 756 of the Code of Civil Procedure, which provides that in case of a transfer of interest, or devolution of liability, the action may be continued by or against the original party, unless the court sees fit to direct otherwise. ' Whether the court shall see fit to do otherwise is a matter entirely within its discretion.- We can see no reason why it should be granted in this case. The rights of the appellants cannot be affected; all that she claims is a right to share in the damages which Israel may recover in such a proportion' as the agreement requires. We see no more reason to substitute her as a party plaintiff than we do to substitute Israel’s attorney if he had acquired a lien.upon the proceeds of this suit.

The cases of Koehler v. New York Elevated R. R. Co. (159 N. Y. 218) and Mooney v. New York Elevated R. R. Co. (163 id. 242) are not in point upon any of the questions presented in this case. In those cases the subsequent grantees had been joined as parties plaintiff apparently in respect of the equitable rights which they had or claimed, and it was held simply that the Supreme Court had the power to join such parties as plaintiffs and defendants if in its judgment it was proper to do so; but we do not, think it is proper to do so where it affirmatively appears as it does here that the original plaintiff has conveyed away his right to equitable relief, and there is a serious question whether the condemnation proceedings have not deprived the subsequent grantee now in possession of the premises of all right to complain that there are any easements appurtenant to her land which are affected by the defendants’ railroad.

For these reasons the order appealed from should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and McLaughlin, JJ., concurred; Ingraham, J., concurred in result.

Order affirmed, with ten dollars costs and disbursements.  