
    Mart F. Murtfeldt et al., App’lts, v. N. Y., W. S. and B. R. L. Co., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    1. Specific performance—When court has discretion to deny.
    Plaintiff sold land to defendant near the Hudson river by a deed, in which she reserved the right of a passageway under the railroad, to he constructed and maintained always by the railroad: Held, that in view of the difficulty in constructing a useful passage under the railroad, and the inutility to plaintiffs of such passage, it was within the discretion of the court below, in the exercise of its equitable jurisdiction, to deny specific performance of defendants’ contract to construct the passage, and leave the plaintiffs to their remedy for damages for breach of covenant.
    3. Trespass.
    Defendants let the contract to construct its road to the North River Construction Company. The latter company sublet the construction of the road through plaintiffs’ premises to W. M. & Co., and they sublet a portion to O’Rourke, by whom an alleged trespass was committed: Held, that as it did not appear that the original contract could not have been executed as made without any interference with plaintiff’s land, plaintiff cannot be held liable.
    Appeal from the judgment of the general term of the supreme court, Second department, affirming judgment for defendants.
    The action was brought to enforce the specific performanee of the following covenants contained in a deed given by plaintiffs to defendant: “The parties of the first part reserve the right to their lands eastward of the above described strip, whether under water or above, and the right to cross the railway of the party of the second part, when constructed to and from said lands, but not so as to interfere in any way with the use of said strip for railway purpose ; and a passageway under said railway at about station 112 shall be constructed and maintained always by the party of the second part for the use of the parties of the first part, their heirs and assigns, which said passageway shall be at least eight feet wide and six feet high in the clear.”
    The plaintiff, Mary F. Murtfeldt, was the owner of a life estate in a parcel of land on the right bank of the Hudson river, north of the city of Newburgh, and the other plaintiffs in this action, with James L. Murtfeldt and Bertha Murtfeldt, who were not joined as plaintiffs, were owners of the reversion. After the railroad of the defendant was projected over the land of the plaintiffs in this action, they executed and delivered to the defendant a deed of conveyance of a strip of land through this parcel, of one hundred feet in width, substantially parallel with the river. This conveyance left a narrow strip of land between the land-conveyed and the river, about two hundred feet long, and thirty feet wide in the widest part, and the plaintiffs reserved the right, by their deed, to cross to their land eastward of the lot so conveyed, whether under water or above, and the right to cross the railroad of the defendant, when constructed, to and from that land, but not so as to interfere in any way with the use of the strip for railroad purposes.
    The defendants had completed their cutting and constructed their road, leaving a high bank on the land-side, near station 112, but descending as the railroad reached the northerly part of the land, and in the extreme north the road was constructed on trestle-work. Any under crossing as called for in the deed would partly fill with water at high tide, and no practical connection could be made, owing to the nature of the embankment.
    
      E. A. Brewster, for app’lts; A. S. Cassedy, for resp’t.
   Earl, J.

In view of the difficulty in constructing a useful passage under the railroad, and the inutility to plaintiffs of such passage, if constructed it was certainly within the discretion of the court below, in the exercise of its equitable jurisdiction, to deny specific performance of defendant’s contract to construct the passage, and leave the plaintiffs to their remedy for damages for breach of the covenant. Trustees of Columbia College v. Thacher, 87 N. Y., 311. There was no allegation in the complaint that the plaintiffs had suffered any damage from the breach of the covenant to construct the passage. There was no proof upon the trial which authorized the court to award any damages for such breach, and there was no claim made by the plaintiffs that, if specific performance should be denied, the case should be reserved for further proof and hearing as to the damages. The whole case was submitted to the trial judge upon the proofs given, and he did not err, under the circumstances, in leaving the plaintiffs to their action at law to recover their damages for the breach of covenant. He found, however, as matter of law, that they had not sustained any damages from the breach of the covenant. That finding was properly based upon the finding of fact that they had proved no amount of damages from the breach of the covenant, and cannot be given wider scope. Mary F. Murtfeldt, one of the plaintiffs, had a life-estate in the premises to be benefited by the covenant, and the other plaintiffs were owners of the reversion, and hence the plaintiffs were not jointly interested in these damages, and it is difficult to perceive how the reversioners are entitled, at this time, to any damages for breach of this covenant, and hence the learned trial judge may have meant by that finding of law that the plaintiffs were not jointly entitled to the damages. But that finding, must be construed with the other, which turned the plaintiffs over to their action at law for their damages, and could not, therefore, conclude them in such action should they bring one.

As to the damages for trespass upon the lands west of the railroad, the proof did not authorize a recovery by the plaintiffs. They, through their agent, had knowledge at the time of what was done by the contractors under the defendant, and made no objection. It let the contract to construct its road to the North River Construction Company. The latter company sublet the construction of the road through plaintiff’s premises to Ward, MacKin & Co., and they sublet a portion of their work to one O’Rourke, by whom the alleged trespass was committed. It does not appear that the contract which the defendant made with the North River Construction Company could not have been executed as made without any interference with plaintiff’s land on the west side of the railroad, and hence it cannot be said that the defendant caused the trespass or is liable for it. But there is a still further answer to the claim for damages on account of the trespass. The plaintiffs did not prove, and did not offer by any competent evidence to prove, any amount of damages for the alleged trespass, and the trial judge so found, and hence there was no basis for the allowance of any substantial damages to the plaintiffs. The judgment should, therefore, be affirmed, with costs.

All concur.  