
    Daniel Mooney and Others, Respondents, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants, Impleaded with Robert Winthrop.
    
      Elevated, railroads — action by an abutting owner to recover fee damages — grantees of the plaintiff cannot upon the trial be made parties plaintiff—proper practice iñ such a case. • • '.
    An action was brought in November, 1890, by an abutting owner to recover damages alleged to have -resulted from the building and operation of an elevated railroad, in which the complaint' alleged the title to the premises to be in the plaintiff, which the defendants by their answer denied. Upon the trial of the action it appeared that in 1891 the plaintiff, Daniel Mooney, had conveyed a part of the premises to David Cohen, and the remainder thereof to Francis . ffcfdlion, .and. the defendants thereupon moved to dismiss the complaint so far as the impairment -of fee value was concerned. The plaintiff’s counsel then moved that Cohen and Scallion might be made parties plaintiff, and that all the proceedings might be amended accordingly, and the motion was granted.
    
      Held, that the ruling was erroneous;
    That as the pleadings stood it was necessary in order that the plaintiff should succeed that he should prove his own title, and that he had put it out of his power to do so.
    
      Semble, that the proper proceeding would have bepn for the plaintiff to have applied to have his grantees made parties defendant, to the end that the rights and equities of all parties might be adj usted in one action, in which case the motion should have been made on notice to the defendants, who would have been given an opportunity -to be heard.
    Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Superior Court of the city of New York in favor of the plaintiffs^ entered in the office of the clerk of said court on the 12-th day of July, 1895, upon the decision of the court, rendered after a trial at a Special Term thereof,
    
      Ézra A. Tuttle and Jxdien T. Davies, for the appellants,
    
      JEugene D. HawMns and JE&wcard W. IS. Johnston, for the respondents.
   Van Brunt, P. J.:

This action was brought in November, 1890, by an abutting owner to recover -damages occasioned by the building and operation of the elevated railroad. The complaint alleged title to the premises in question, and the defendants put in an answer in January, 1891, denying such title. TJpon the trial it appeared that subsequently, in 1891, the plaintiff Mooney had conveyed' a part of the premises in question to David Cohen, and the remainder thereof to Francis Scallion. A motion having been made by the defendants to dismiss the complaint upon this ground, as far as the impairment of fee value was concerned, the plaintiff’s counsel moved on behalf of said Oohen and Scallion that they might be made parties plaintiff in the action, and that all the proceedings might be amended accordingly. The court granted the motion and-the defendants’ counsel duly excepted.

We are not aware of any provisions of the Code or Rules of Practice which permit the summary injection of parties into an action,, such as was attempted in the case at bar. The defeiidants had put in issue the plaintiff’s title. This made it necessary for the plaintiff to prove his title upon the trial if he was to succeed. By his own act he had deprived himself of title and of all right to equitable relief. It is undoubtedly true that by bringing in the grantees as parties defendant, as is suggested in the case of Pegram v. The Elevated R. R. Co. (147 N. Y. 135), the court would have been in a position to adjust the equities and rights of all the parties, and to render a complete decree, which would have been binding upon each. Of such action upon the part of the court the defendant appellants would have been entitled to due notice and an opportunity to be heard, of which the court had no right to deprive them. In the case at bar, it.'appearing that the plaintiff had parted with the title, the grantees were brought in as parties plaintiff without pleadings, without an amendment of the process by which the suit was commenced, and in spite of the protest of the defendants the trial proceeded. **

The case of Domschke v. Metropolitan Elev. R. Co. (148 N. Y. 343) affords no authority for any such procedure. In that case the evidence had been closed. It was then discovered by the defendants that the plaintiffs had conveyed the premises during the trial. The defendants then made a motion to open the case, which was granted so far as to allow the admission of the deed in evidence for the purpose of showing the present value of the premises and no further— a case entirely dissimilar to the one now under consideration. The defendants were not in a position in that ease to;insist, that the grantee of the premises should be regularly brought in and made a party to the action.

It seems to us that when upon the trial the' plaintiff failed to prove title, if it was desired that the question of fee damage to the grantees might be determined in this action, it was error not to compel such grantees to be brought in and make their plea and demand which the defendants would have a.right to-answer before judgment was entered against them.

The judgment should be reversed and a new trial ordered,, with costs to the appellants to abide the event.-

Barrett, Rdmsby, O’Brien and Ingraham, JJ., concurred.

Judgment reversed and new trial ordered, costs to appellants to abide event. • ■  