
    Rose McFadden, Plaintiff, v. Jacob Block et al., Defendants.
    (Supreme Court, New York Trial Term,
    November, 1899.)
    Contract — Continuing agreement of grantees to continue their grantor’s action against elevated railroads for trespasses to easements and, if successful, to release easements — Refusal to release.
    An abutting owner, who had sued an elevated railroad for trespasses to her easements, sold the premises but reserved the fee and rental damages. Under an agreement, which was to last five years, the grantees covenanted to continue the action in their own name, but for the grantor’s benefit, and, if successful, to release to the corporation all easements, required by the judgment to be released. When the case was reached on the calendar the five years had elapsed and, although the grantees recovered judgment, they refused, upon tender of the proper amount by the corporation, to release any easements to it.
    Held that the grantor was entitled to maintain an action against the grantees for the damages which she had sustained by their refusal.
    That both the grantor and the grantees had treated the contract as a continuing one, and that the grantees would not now be permitted to invoke the five years limitation in order to defeat the grantor of a recovery which actually belonged to her.
    Plahttiee owned property on the line of the elevated railway, and brought a suit for an injunction and damages. Pending the-action and on April 24, 1893, she sold the property to the defendants, reserving to herself the fee and rental damages. To carry into effect this purpose the defendants on the same date agreed to continue the action in their name; that the judgment recovered should be for the benefit of the plaintiff and her attorneys, and to execute when necessary all releases of the easements of light, air and access, required by the judgment, if the suit proved sucessful; and the parties also agreed that the agreement should come to an end five years after its date. The action was accordingly continued in the names of the defendants as grantees of the property, and on Hay 17, 1899, after the expiration of the five-year^ limitation, they recovered judgment against the railway company for $800 fee damage, with. an. injunction enjoining the running of the road unless the company paid, this amount upon receiving a proper grant of the easements. The company tendered this amount but the defendants refused to execute the necessary releases. Hence the present action to recover the damages caused by such refusal.
    The plaintiff proved that the equity suit was tried as soon as it was reached in its order on the calendar, without any delay other than that incidental to the law, and that the defendants did not until after judgment insist upon the five-year limitation, but permitted the action to proceed to trial and judgment without objection, which the plaintiff claimed operated as a waiver of the provisions of the contract as to time.
    Atwater & Cruikshank, for plaintiff.
    John R. Farrar, for defendants.
   McAdam, J.

The defendants, as vendees of the realty, having authorized the continuance in their name of the equity suit brought by the present plaintiff, the vendor, against the Manhattan Railway, for fee and rental damages, and having permitted the plaintiff and her attorneys to. proceed with and try the same and incur expense in its prosecution, after the expiration of the five years-mentioned in the contract, cannot now mend their hold to her prejudice. The defendants treated the contract as a continuing one (3 Add. Cont. Am. Notes by Abbott & Wood, 1193; Smith v. Gugerty, 4 Barb. 621), allowed the plaintiff to act on that assumption, and now that the prosecution has terminated favorably cannot avail themselves of the five-year limitation contained in the contract, and by so doing deprive the plaintiff of the recovery which was intended for her benefit by the terms of said contract, which accompanied the sale and formed part of its consideration. The defendants, by refusing to execute the release to the railway company of the easements of light, air and access, prevented the plaintiff from receiving the sum awarded therefor and damnified her to that extent There must be judgment for the plaintiff. 1

Judgment for plaintiff.  