
    Shepard Knapp, Substituted Trustee, Resp’t, v. The New York Elevated Railroad Company et al., App’lts, and James Hooker Hamersley et al., Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed July 3, 1893.)
    
    31. Railroad—Elevated—Damases to rentals.
    On the trial of an action to restrain the operation of an elevated railroad in front of plaintiff’s premises, and for damages by reason of the construction and operation of said railroad, it appeared that prior to the time the road was built the premises rented for $5,000 per year, that the year the railroad came the property was repaired, but had no tenant, and that it has never since rented for more than $2,700; the testimony clearly demonstrated that the diminution of rent was not peculiar to the property in suit. Held, that the referee’s estimate of rental damage per annum, §900, including interest, was not excessive.
    S. Same—Limitation.
    One H., the owner of a moiety of certain premises, declined to become a plaintiff in such action, and was made a defendant. Prior to the trial of the action H. died, and a motion was made to bring in his representatives; they did not appear on the motion, and on the election of defendant railroad company, they were by order made parties defendant, and answered the complaint claiming relief similar to plaintiff, nearly two years after the commencement of the action. Held that the rule of limitations applicable to the claim of the defendant representatives of H. did not differ from that which controlled plaintiff’s claim.
    3. Same—Parties—Waiver oe objection.
    In such case, the defendant railroad company after the plaintiff had rested moved to dismiss the complaint and the claims of the co-deferidants, on the ground that all the parties were not before the court, the co-defendants being trustees and the remaindermen not having been brought in. The objection had not been raised by answer or demurrer, and the defendant knew of their existence at the time it elected to bring in the trustees. Held, that the objection was raised too late.
    4. Same—Remaindermen.
    Remaindermen are not proper parties to an action where no fee damages, but only past damages are awarded.
    Appeal by defendants, the railroad companies, from a judgment entered upon the report of a referee.
    This action was commenced on April 2, 1889, by Shepard Knapp, as trustee for Andrew S. Hamersley, to restrain the operation of the elevated railroad of the defendants-appellants herein in front of No. 116 Pearl street, in this city, and for damages sustained by reason of the construction and operation of said railroad in front of said premises. The case was tried before a referee, who rendered judgment in favor of the plaintiff, Shepard Knapp, as trustee, and also in favor of the defendants-respondents, Hamersley and others, trustees, awarding an injunction against the operation of the railroad in front of said premises, and also awarding damages to the plaintiff and to said defendants-respondents, Hamersley and others, against the said railroad companies. From this judgment, entered on the report of said referee, the defendants, the railroad companies, appeal to the general term.
    The legal title to one undivided half of the premises in suit Tested in the plaintiff, Shepard Knapp, as substituted trustee under the will of Thomas Hamersley, deceased, for the life of Andrew S. Hamersley; and upon the death of said Andrew S. Hamersley, the title to said one undivided half of said premises will vest in the children then living of said Andrew S. Hamersley. The children now living are Andrew S. Hamersley, Jr., William L. Hamersley and Odile H. Southwick, all of full age. The other moiety was the property of John W. Hamersley, who declined to become a plaintiff, and was made a party defendant herein, at the commencement of the action.
    Prior to the trial of the action the said John W. Hamersley died, and a motion was duly made to bring in his representatives as parties. Said representatives did not appear upon the motion, and it was left to the attorneys for the defendants, the railroad companies, or consent of the plaintiff, to elect whether the executors and trustees of the late John W. Hamersley should be made parties, or whether the action should continue without bringing them in. The attorneys for the railroad companies elected that these representatives be brought in, and an order making them parties defendant was, therefore, duly entered, and by said order it was provided that no supplemental summons or complaint need issue. Thereupon the parties so brought in by said order as defendants in the action, under the practice prescribed in the Code, §521, answered the complaint, claiming relief similar to that demanded by the plaintiff, and served copies of their answer upon the plaintiff and upon the defendants, the railroad companies. The death of the said John W. Hamersley vested the legal title to the moiety that he had owned at the time of the commencement of the action in the defendants James Hooker Hamersley, Courtlándt de Peyster Field and John H. Livingston, executors and testamentary trustees under the will of John W. Hamersley, deceased, for the life of Helen E. H. Stickney. Hpon the death of Helen R. H. Stickney, the title to said moiety will vest absolutely in the lawful issue of said Helen E. H. Stickney, and in default of such issue in James Hooker Hamersley .and Virginia Field, and their issue. The railroad companies, in their answer to the complaint, and also in their answer to the answer of the newly made parties defendant above mentioned, set forth the usual defenses in elevated railroad cases, including the statute of limitations, and pleaded the statute as to a period of six years preceding the commencement of this action. The referee found that the construction and operation of the elevated railroad in front of the premises in question caused substantial damage both to the fee and to the rental value of the premises, and he awarded $8,692.50 damages to the rental value, which damages included all interest, and he divided the damages equally between Shepard Knapp, as trustee, and the representatives of John W. Hamersley’s estate, and directed an injunction limited to the life of Andrew S. Hamersley and Helen E. H. Stickney, and the survivor of them, unless within three months from notice of entry of judgment the defendants, the railroad companies, procured the property to be condemned according to law. The referee did not find the amount of diminution of fee value, and no condition predicated upon any estimate of the diminution of fee value was affixed to the injunction. The court awarded costs, and an allowance of five percent, upon the recovery to the plaintiff, and also to the representatives of John W. Hamersley, deceased, defendants-respondents, against defendants-appellants, the railroad companies.
    
      Stewart & Sheldon, (J. Aspinwall Hodge, Jr., of counsel), for pl’ff. resp’t; A. P. & W. Man, (.Henry. H. Man, of counsel), for def’ts. resp’t; Davies, Short & Townsend, (Julien T. Davies and John S. Wood, of counsel), for app’lts.
   Gildersleeve, J.

learned counsel for - the defendants-appellants challenge the judgment, and assign numerous errors, each of which they claim calls for a reversal. We will take up such objections as seem to call for discussion in the order in which they are presented for our consideration in the able brief of the counsel for defendants-appellants.

Mrst It is claimed that “ the amount fixed by the referee as-past damages is excessive and unjust, and altogether unsupported by legal evidence.”

The premises in question are at Hanover square, on the southerly side of Pearl street, near Old Slip, and are twenty-four feet four inches in width in front, twenty-three feet two inches in width in the rear, and about eighty-six feet deep. The premises are occupied by an old four story building, which, down to 1878, when the railroad came, rented, as appears by the testimony, to a single tenant for $5,000 per annum. The year the railroad came $3,800 were spent in improvements, and the property had no tenant. Never since the coming of the railroad has the annual rent exceeded the sum of $2,600 to $2,700. The actual difference between the rent in 1878 and the rent in 1891, when the testimony was taken, was $2,400. Nothing could be clearer than that since the coming of the railroad there had been a diminution of rent.

The problem the referee had to decide was what part of the diminution was attributable to the railroad. That the diminution of rent was not peculiar to the property in suit, and therefore did not arise from any conditions not common to property on Hanover square, a careful examination of the testimony clearly demonstrates. The referee’s report was dated November 29th, 1892, something more than three years and seven months after the action was commenced, and the period, therefore, for which the damages were awarded, was something more than nine years and seven months. The average period for which appellants must be charged with interest is more than four and one-half years. The referee estimated the rental damage per annum, including all interest, at about $900. We consider the estimate a moderate one, and that there, is ample evidence to support the award of $8,692.50, for rental damage.

Under this point, it is claimed on behalf of appellants that such damages, if any, as the defendants-respondents are entitled to recover, should be estimated from six years prior to the service of their answer, and not from the date of the service of the summons ; that in awarding to them exactly the same sum as given to the plaintiff, the referee erred. The answer of the defendants-respondents was served on March 17th, 1891, nearly two years after the commencement of the action. By the plea of appellants, in which they claim to set up the statute of limitations in their answer, they allege that “ the pretended cause or causes of action set forth in the answer of the co-defendants herein did not, nor did any of them, accrue to the plaintiff herein or to his predecessor or predecessors in title, within six years next preceding the commencement of this action.” The cause of action to which the objection now under consideration is raised never belonged to the plaintiff. The plea seems to be defective, but assuming that it is sufficient to interpose the defense of the statute of limitations to the co-defendants’ claim, we are of opinion that the rule of limitations applicable to the co-defendants’ claim does not differ from that which controls the plaintiff’s claim. The co-defendants’ predecessor was a party to the action at the time it was commenced, and the rights of his representatives are such as belonged to him at the commencement of the action, so far as relates to the statute of limitations.

The time when the action was commenced as to John W. Hamersley (to whose position as party to the action, as well as to whose position as owner of the moiety, these co-defendants succeeded), must be held to be the time when it was commenced against the railroad companies. The duty imposed upon John W. Hamersley and his representatives, under §521 of the Code, which regulates the practice when a defendant, having a claim against a co-defendant, desires a determination of it, was to serve a copy of their answer upon the attorney for each of the defendants to be affected by the determination, at least twenty days before the trial. That was done in this case. We are of opinion that the referee was warranted in awarding to the defendants-respondents the same damages to rental value as were awarded to the plaintiff.

Second. It is claimed upon behalf of the appellants that the proper parties are not before the court.”

The parties to the action to whom awards have been made are trustees, and the defect claimed consists in the absence from the action as parties of the remaindermen under each of the trusts. These remaindermen are the children of Andrew S. Hamersley, (whose names appear in the above statement of facts) and James Hooker Hamersley and Virginia Field. Neither of these persons individually is a party to the action. At the time the order was made bringing in the representatives of John W. Hamersley, it must have appeared by the motion papers what the character of their interest was. Át this time the railroad companies did not ask to have brought in the remaindermen under the will of John W. Hamersley, but elected that the present co-defendants should ■ be brought in,and acquiesced in the order bringing them in without any supplemental complaint The will of John W. Hamersley, ■creating the trust under which the defendants-respondents acted, was annexed to the answer of the said defendants-respondents, and the precise interest of the said defendants-respondents in said property, as appeared by the will, was thereby disclosed. The answer of the railroad companies to this answer did not raise the question that the proper parties were not before the court, nor was it raised when the motion was made for a reference.

It appeared on the face of the complaint that Shepard Knapp was trustee only for the lifetimeoof Andrew S. Hamersley. Yet neither by answer nor by demurrer to the complaint was the point taken that the remaindermen were necessary parties. After the plaintiff had rested, the counsel for the railroad companies moved “ to dismiss the complaint, and the claims of the co-defendants, on the ground that all the parties are not before the court, and that, under the decision in the Bache case, the proceedings herein before the referee must be arrested until the plaintiffs have had an opportunity to bring in all the necessary parties, in order to give the defendants absolutely correct title to the easements for which they claim damages.” This objection was raised too late. The defendants, the railroad companies, having failed to raise the question of defective parties either by demurrer or by answer, and having raised no objection by reason thereof until after the plaintiff had closed his case, must be held to have waived such objection. Decker v. Decker, 108 N. Y., 125, 135; 13 St. Rep., 131; Code Civ. Pro., §§ 488, 498, 499.

But all the necessary parties to the adjudication herein made were before the court. No fee damage is awarded. The remaindermen are not even proper parties to, or interested in, the award for past damages. The Bache case, 60 Hun, 128; 38 St. Rep., 421, upon which the counsel for the railroad companies based the objection now under consideration, does not support the appellants’ contention. In that case,' the plaintiff’s interest terminated upon her death or marriage, but fee damage was awarded, and computed upon her expectation of life. It was error to thus place upon the defendant the burden of sustaining the hazard of the termination of plaintiff’s estate by either death or marriage. For this error the judgment was reversed. The case at bar is free from any such risk.

Third. The rulings objected to under the remaining points in the appellants’ brief, excepting the alleged error discussed under the seventh point, have been examined, and in our opinion do not demand separate and special notice. The referee did not fix, by computation, a certain sum and award the same as alternative relief, but gave the railroad companies time in which to condemn. Their proposed findings, therefore, bearing upon the question of a proper sum as alternative relief, were immaterial. For'this reason many of the exceptions to the refusals to find are not well taken. A careful examination of the numerous exceptions to findings made and refusals to find fails to disclose any material error. We reach the same conclusion in reference to the exceptions to the admission and exclusion of evidence.

Under the appellants’ seventh point, it is urged that the referee erred in awarding costs and allowance to the defendants-respondents. In all equity cases costs are discretionary, both at special and at general term. See Herrington v. Robertson, 71 N. Y., 280. Costs in equity actions, referred to a referee, are within the discretion of the referee. Phelps v. Wood, 46 How., 1. The referee, in making the award of costs herein to which objection is taken, does not appear to have abused the discretionary power with which he was vested by disregarding well settled principles applicable thereto. The defendapts-respondents had a substantial claim against the defendants-appellants, the railroad companies, who elected that they be brought in. Their rights have been litigated, and we do not think they should forfeit costs because-they do not occupy the nominal position of plaintiffs. Code, §§ 3230, 3253. It is not unusual to allow costs to one defendant against another in the same case. Budd v. Monroe, 18 Hun, 316; Chester v. Jumel, 24 St. Rep., 230. For these reasons, we think the judgment as to costs and allowance should not be disturbed.

We can find no just reason for a reversal of the judgment. It must be affirmed, with costs to plaintiff, and since the defendants-respondents have been compelled to argue additional questions to those presented by the appeal as against the plaintiff, costs must be awarded to defendants-respondents also.

Freedman, J., concurs.  