
    Anna Grosser, App’lt, v. The City of Rochester et al., Resp’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 2, 1891.)
    
    Joint tenants—Husband and wife—Wife entitled to injunction AGAINST CONSTUCTION OF SEWEB WHEBE CONDEMNATION PBOCEEDINGS WEBB AGAINST HUSBAND ALONE.
    The city took proceedings to condemn a right of way for a sewer across lands which had been conveyed to the plaintiff and her husband jointly, but the husband alone was served and appeared. Held, that as against the plaintiff the city acquired no right in the premises; that plaintiff had rights by virtue of her joint tenancy which were liable to be seriously impaired by the construction of the sewer under the proceedings already had, and that she was entitled to an injunction to prevent the prosecution of the work until the city shall have acquired the right against her.
    Appeal by the plaintiff from a judgment entered on the report of a referee.
    
      T. D. Wilkin, for app’lt; H. J. Sullivan, for resp’ts.
   Dwight, P. J.

The action was brought to restrain the city and its contractor from constructing a sewer across a city lot be-longing to the plaintiff and her husband, George Grosser,, the latter of whom was made a party defendant after having declined to unite with the plaintiff in bringing the action. The lot fvas conveyed to the plaintiff and her husband jointly, and was occupied by them as a residence. The city of Rochester took proceedings to condemn a right of way for a sewer across the lot, and gave the required notice to the husband alone and not to the plaintiff. The proceeding was in all respects regular as against the husband; damages were assessed and the money was paid into court. The city then let a contract for building the sewer to the defendant Brayer, and he was joined with the city as defendant in the action.

We agree with the learned referee, and for the reasons well stated by him in his opinion, that service of the notice on the husband and his appearance in the proceeding did not make the wife a party thereto, nor bind her interest in the property, and, therefore, that as against her the city acquired no right in the premises; but we cannot agree with him that she had no rights in the premises which were liable to be injuriously affected by the building of the sewer under the proceedings actually had.

It is true that, under the doctrine of Bertles v. Nunan, during the joint lives of the husband and wife “ the husband has the right to the exclusive benefit, use, possession and control, of the land, and may take all the profits thereof; and may mortgage or convey an estate, to continue during the joint lives; but, he may not make any disposition of the land that would prejudice the' right of the wife in case she should survive him.” Bertles v. Nunan, 92 N. Y., 156 ; Coleman v. Bresnaham, 54 Hun, 619 ; 28 N. Y. State Rep., 208. The husband, therefore, might have granted the right of way during the joint lives, with provisions against a permanent injury to the freehold ; and whatever he might grant the city might acquire from him, by condemnation proceedings to which he alone was made a party. But this is not what has been done in this case. Here the city has proceeded against the husband as the sole owner of the title, to acquire a perpetual easement in the land, which includes the right, for all time, to maintain the sewer and to enter upon the property to repair and renew it. All these rights the city has already acquired on the face of the record, and its counsel is contending here that it has in fact acquired them against the plaintiff by the proceeding against her husband. The learned referee while holding the contrary suggests, in substance, that it will be time for her to contest the claim of the city when her title shall become absolute by survivor-ship. But suppose the sewer is built and put to ife proper use of draining a large and populous section of the city, and then her husband dies. How shall she proceed to assert and enforce her rights ? If the city decline to recognize them shall she tear up or cut off the sewer ? Or as the referee suggests, restrain the city from its use ? And in either case, with how much more of inconvenience and expense, than if she had taken, her remedy when those rights were only threatened with invasion. Or suppose the husband dies when the work is only fairly under way, with her lot divided by an excavation and the earth or rock which has been thrown out of it. Her title has now become sole and absolute and the city has no right to proceed a step further with the work. But they have paid for the damage so far done, in the award made to the husband, and if the plaintiff stop the work where it is, she may restore her lot to its proper condition at her own expense.

It seems very clear that the plaintiff has rights by virtue of her joint tenancy, which are liable to be seriously impaired by the action which the defendants are about to take.

We think the learned reféree erred in the latter of his conclusions above mentioned, and that the plaintiff, upon the facts appearing by the record, was entitled to the restraining process of the court to prevent the prosecution of the work on the plaintiff’s property until they have acquired the right as against her.

The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event

Macomber, J., concurs.  