
    Daniel Mooney, Respondent, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants, Impleaded with Robert Winthrop.
    
      Elevated railroad of New York city — where the plaintiff voluntarily pa/rts with the fee pending the action, his grantees are not pn'oper parties plaintiff or defendant.
    
    In an action by an abutting owner against the elevated railroad companies of Hew York city for an injunction and damages, a person to whom, after the ■commencement of the action, the plaintiff has conveyed the premises, and who, prior to. the making of such application, has conveyed them away to a third person, is not a proper party plaintiff or defendant, nor is the present owner of the premises,,the person to whom such grantee has conveyed, nor will they be made parties thereto on the plaintiff’s motion.
    
      The easements affected by such actions cannot be severed from and exist independently of the property to which they are appurtenant, and a plaintiff who pending the action voluntarily parts with the fee has no right to an injunction, and has no interest in any controversy between his subsequent grantee and the railroad companies respecting the granting of an injunction.
    There remains in him only a right to recover his damages in an action at law.
    There is no principle of law which sanctions two different and distinct rights, one legal and the other equitable, which exist in favor of different and distinct persons, being united and litigated in a single action, against the objection of any of the parties thereto.
    Appeal by the defendants, The New York Elevated Railroad Company and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of November, 1896, granting the plaintiff’s motion to join David Cohen and Francis Scallion as parties defendant in the action, and granting the plaintiff leave to make and serve a supplemental summons and eompláint.
    
      Brainard Tolles and Julien T. Davies, for the appellants.
    
      Eugene D. Hawkins and Edward W. S. Johnston, for the respondent.
   O’Brien, J.:

This action was begun on the 1st day of December, 1890, to secure an injunction and damages on account of the construction, maintenance and operation of the defendants’ elevated railroad in front of premises which, at the date of the commencement of the action, the plaintiff alleged belonged to him. This allegation of ownership was put in issue by the answer. This is the third time that the question of Cohen and Scallion being made parties to the action has been before this court. The first time was upon the defendant’s appeal from final judgment. It then appeared that subsequent to the commencement of the .action, and in 1891, the plaintiff had conveyed a part of the premises to David Cohen, and the remainder to Francis Scallion, who were not parties to the action ; and a motion having been made to dismiss the complaint upon this ground, as far as the impairment of fee value was concerned, the plaintiff’s counsel moved and obtained permission to bring in Cohen and Scallion as parties plaintiff, and thereafter damages were, awarded to both Cohen and Scallion by the judgment. This judgment was reversed upon the 'ground that, under the Code and Rules of Practice, such a “ summary injection of parties into an action ” was not authorized. (4 App. Div. 30.) The second time the question was before the court upon a motion to make Cohen and Scallion parties plaintiff, which having been denied below, the order to that effect was affirmed on appeal. (10 App. Div. 625.) Thereupon a motion was made to bring them in as parties defendant which Was granted, and it is from this order that the present appeal is taken. '

So far as Cohen is concerned, he was the owner of the property between April 5, 1891, and October 13, 1891, a period of six months and eight days. He neither had nor claimed any interest in the property itself either at the commencement of the action or at the time of the motion. Nor does plaintiff ask or seek to recover herein any past damages to which he might be entitled. The only claim-against the defendants which Cohen could advance is one for past damages during the period of his ownership. This is not a matter in which the plaintiff has or claims any interest, and even if acquired by assignment or otherwise, it cannot be regarded as within the scope of the present controversy. (Oehler v. New York Elevated R. R. Co., 4 App. Div. 152.)

With respect to Scallion, who at the present time owns the fee, another and more difficult question is presented, one which has been many times mooted and indirectly involved in these litigations, but has never been squarely passed upon, viz.: Whether after the commencement of an action, where the grantor voluntarily conveys away the fee,-the grantee or the one to whom he’subsequently conveys, is a proper’or necéssary party to the action.

It is conceded that the plaintiff here is not entitled to equitable relief, because, as an incident to the fee which he has parted with, that right’passed to the grantee, who now holds the legal title to the property. It has been held in these cases that the easements are appurtenant to the property and cannot be severed, or exist separate and distinct from the fee itself. So that it must be regarded as settled -by authority that, neither by a reservation in a deed nor by agreement, could one who had parted with his title to the fee maintain an action for equitable relief upon the ground of the impairment of the easements, but that such right would pass to his grantee. With respect to the damages which might he awarded as the outcome of the suit, instead of an injunction, this could be the subject of a contract or agreement between the parties which could be enforced.

In Pegram v. Elevated R. R. Co. (147 N. Y. 135) it appeared on the trial that the plaintiff had conveyed to a third person, not a party to the action, the fee, reserving a right to the damages which had been or might thereafter be caused to the property by the railroad, together with the right to use the grantee’s name either in a release of the easements in the street to the railroad company or in any suit against it. It was held that the plaintiff was deprived of the right to relief by way of injunction against the company, or by an award for damages to the property subsequent to his conveyance ; and Judge Or at, writing the opinion, in speaking of the effect of such a reservation, says : “ If it could be assumed that the language of the reservation in the deed was sufficient to assign easements appurtenant to the property, such assignment would. be absolutely ineffectual. The easements of an abutting owner in the street which are invaded by the construction, maintenance and operation of an elevated railway, are appurtenant to his premises, and as it was said in the Kernochan Case (128 N. Y., at page 568), in the nature of things they are indissolubly annexed thereto until extinguished by release or otherwise. They are incapable of a distinct and separate ownership.’ The right to enjoin the continuance of the trespass by the defendants upon those easements could not be reserved upon the sale of the property. The right could only be possessed and enforced by its owner. * * * There need be no question as to the right of the parties to agree to make such a reservation as this; but the effect of it, while certain in so far as it could not sever the easements from the land, 'was a question between them, in the disposition of which the concern of the defendants was that in any action relating to a damage to the property for invasion of its easements, the legal owner should be bound by the result. The defendants ■clearly are entitled to have the holder of the legal title to the abutting property bound by a decrée, which permits them, as a condition ■of being relieved from the injunction, to acquire the legal right of maintenance and operation by the payment of the sum of money fixed by the court as the due compensation to be made. If the plamtiffs had brought in■ Schortemeier as a party .defendant in' the action, the court would hme been in a position to adjust the equities and rights of all the parties, and to render a complete decree, which would have been bi/nding upon each. The equities created or arising between the plaintiffs and Schortemeier through the reservation in the deed can only be effectively adjusted by his presence as a party to an action which had that as one of its objects.”

We have here an expression favorable to the view that had the owner of the fee been joined as a party, the court would have been in a position to render a complete decree. 4And in this very action, upon the appeal from the judgment, where the1 grantees of the plaintiff were made parties plaintiff, the presiding judge, writing the opinion, said (4 App. Div. 31): “ 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.”. In the Pegram case the point involved was as to the right of the plaintiff, who had parted with the fee pendente lite, to an injunction, and the expression quoted by' the presiding justice was but a dictum, entitled, however, as coming from an eminent and learned judge of our highest court, to the greatest weight, and we should be inclined to follow it if its effect were not defined and limited by expressions of the same judge and by the court of which he is a member, in later decisions.

Thus in Foote v. Met. El. R. R. Co. (147 N. Y. 375) Judge Gbay, writing the opinion of the court, says: “We had occasion quite' lately in the Pegram case to consider the effect of 'a reservation in a conveyance made pending a similar action to this, which was brought by the grantor to restrain the operation of the defendants’ road." The reservation in the grant there was of such a nature that, were the easements in question capable of lawful assignment, it would have been effectual for that purpose. -But the claim of the plaintiff in that case to be entitled, by virtue of the reservation :in the grant, to the equitable relief demanded and the damages occasioned since the date of his conveyance of the property was denied.. We there regarded the person who was the owner of the abutting property as having the sole right to the street easements and, hence, was solely injured'by their unlawful appropriation, and was solely invested with the right to ask that the defendants’ acts be restrained, and that they be compelled to make compensation to him for the taking of his property, as a condition of their right to be there.”

This last case is authoritative, therefore, against any claim of right on the part of a grantor who has parted with the fee to maintain any litigation founded upon a claim for an injunction. If the plaintiff in such a case has no right in any event to recover a judgment of injunction, it is not clear upon what theory he can be allowed to bring in additional parties to the action upon the claim that they are necessary parties to a determination of his right to an injunction. And in Shepard v. Metropolitan Elevated R. Co. (82 Hun, 527; affd., 147 N. Y. 685, 713), which was an appeal from an order of the Special Term denying the application of a petitioner who was a grantor that had conveyed the property with a reservation, to be made a party to the action, Presiding Justice Van Brunt, writing the opinion at the General Term, said : “ It has been distinctly held that these easements cannot be severed from the principal éstate so as to form the basis for the establishment of any right. It has been further held * * * that such a reservation as was contained in the appellant’s deed left no right of action in favor of the grantor in the deeds containing .such reservation. It is a well-established rule in our jurisprudence that an action must be brought in the name of the real party in interest, and the fiction of one party bringing an action in his own name to the use of another is no longer permitted.”

Reading the Pegram case in connection with the others referred to, we think there is authority for the propositions (1) that a plaintiff who has parted with the fee has no right to an injunction, and can in no event recover a judgment nor be permitted to appeal from the denial of such judgment; and (2) that he has no interest in any controversy between a subsequent grantee and the defendant railway companies respecting the granting of an injunction. The conclusion which flows from this proposition is, that in the plaintiff’s present action the subsequent grantees are not necessary parties defendant,

There are a number of cases growing out of these litigations between the abutting property owners and the elevated railroad companies, in which, we have said, the question -has been collaterally '.involved and discussed. Some of these were, actions brought hy the owner of the fee in which were joined as parties those entitled to past damages, e. g., Shepard v. Manhattan R. Co. (117 N. Y. 442), wherein '.it was suggested that, seemingly, in such an action the presence of :all parties interested in the subject of the suit, and whom the provisions of the decree therein might affect, is proper, if not actually '.necessary. These cases, however, we" do not deem it necessary to consider, contenting ourselves with the additional reference to the case of Van Allen v. N. Y. E. R. R. Co. (144 N. Y. 174). There, after the commencement of the action, the plaintiff sold and conveyed the premises, retaining no interest in them, and without in terms reserving the cause of action. In ignorance of this fact of sale and conveyance, the defendant’s counsel entered into a stipulation referring the issues in the action. On the trial before the referee, a motion was made to dismiss the complaint because of the conveyance, on the ground that the only claim the plaintiff had after the conveyance was for past damages, and for this he had an adequate remedy at law. . The motion was denied, and upon appeal to the Court of Appeals it was held that this was no error; that the plaintiff was ■entitled to recover damages up to the time of sale, one judge dissenting and three others concurring in the result, they holding that the principle that a court o'f equity, having once obtained jurisdiction, could not be deprived thereof, upon the ground that the sole ground upon which plaintiff could invoke that equity had ceased to exist, so lorig as there remained any injury to be redressed, although .as to that there might be an adequate remedy at law, did not apply where the party, hy his own voluntary act, had withdrawn from the ease the main fact which originally was the ground upon which ■equity jurisdiction attached; but holding that, by virtue of the •stipulation, the action was properly proceeded with. The question there was as to the right of a court of equity to proceed and award ■damages after the plaintiff had parted with the property, the possession of which was his sole ground for asking equitable relief; and the question before us, as to the right to bring in the grantee as a necessary party, was not involved. That _ case is distinguishable from the' one at bar in two principal features : (1) In that there was a stipulation referring all the issues, and (2) that there was no reservation in the deed. We have seen, however, that a reservation in a deed confers no right to equitable relief upon one who has parted with the fee.

Apart, therefore, from the right, as between the parties themselves to the deed or agreement of reservation, it is certain that upon a conveyance there remains ■ in the grantor but a right of action at law for past damages, and in the grantee a right of action for equitable relief by way of injunction, and these are entirely separate and distinct. And it is now settled that, where one is entitled to equitable relief he may have an award of damages, because such are deemed to be incidental to such relief; and where there are persons other than the plaintiff entitled to some portion of such damages, there is no insuperable objection to a complete determination of the legal rights of all the parties then before the court. The principle, however, sustaining such practice is not applicable to a case where, at the time of the trial, it appeal’s that the plaintiff, by his own voluntary act, has abandoned the sole ground upon which his right to equitable relief depends, so that at that time such right has ceased. We do not know of any principle which thus far has sanctioned two different and distinct rights, one legal and the other equitable, which exist in favor of different and distinct persons being united and litigated in a single action against the objection and protest of any of the parties to be affected by the judgment to be entered in such action. Nor do we think that the mere delay or inconvenience involved in bringing separate actions a sufficient argument to justify our establishing such a precedent. We have already held, in effect, upon the former appeal, taken from the order denying the motion made to bring in these same persons as parties plaintiff, that this should not be done because they had no such interest in the subject of the controversy pending between the plaintiff and the defendants as made them necessary parties plaintiff. In an equity case, the distinction between parties plaintiff and parties defendant being one of form, affecting no substantial interest except as to costs, is seldom, made. While, therefore, we denied the right of these third persons, on their own applications, to be made parties plaintiff, we fail to see upon what principle the court would be justified in bringing them in upon tlie application of the plaintiff as parties defendant. In either case, the question of their being made parties at all must necessarily depend upon whether they had or had not an interest in the subject of the pending action, which, if they had, entitled them, as a matter of ábsolute right, to be brought in, and, as we have said whether as plaintiffs or defendants was immaterial. _

We think, therefore, that it .would be inconsistent, after having refused on their own petition to allow them • to come in as parties plaintiff, to require these third parties to appear upon plaintiff’s motion as parties defendant, the purpose sought being to confer upon the plaintiff, who, at the time of the trial, had no equitable cause of action, the benefits or zadvantages which would result to-him as incidental to the main equitable relief, which, concededly, belongs to another.

We think, therefore, that the order was erroneous and should be reversed,'.with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Barrett, Rumsey and Ingraham, JJ., ■ concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  