
    Patrick Phillips, Resp’t, The Rome, Watertown & Ogdensburgh R. R. Co., et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 15, 1890.)
    
    1. Real property—Determination op claims to—Pleading.
    By subd.. 3, § 1639, Code Civ. Pro., relating to the determination. o£ claims to real property, it is required that the complaint must set forth that the defendant unjustly claims an estate in the premises of the character specified in the preceding section. The complaint here alleged “ that the defendants unjustly claim an estate in these premises in fee or for life or for a term of years, not less than ten years, or in reversion or remainder, by virtue of a lease or conveyance made by said 0., W. & S. H. R. R. Co., which said lease or conveyance, and all rights thereunder, the defendant, the R., W. & O. R. R. Co. now claims to own.” Held, sufficient.
    2. Same.
    Where both a lessor and a lessee corporation were made defendants, as having a claim, and both appeared, and neither disclaimed by their pleadings, or in any manner on the trial, and no motion has been made at any time to dismiss the complaint, the defendant cannot on appeal urge that there was nothing to show that the lessee company made a claim against plaintiff, and that, therefore, as to it the complaint should have been dismissed.
    3. Same—Mortgagees.
    The court will not consider the rights of mortgagees who are not parties to an action, and, therefore, not bound by the result.
    Appeal from a judgment entered upon the decision made at the circuit in Jefferson county bv the court, a jury having been waived, and the judgment entered thereon.
    
      Action to compel the determination of a claim to real property in pursuance to § 1638 el seq. of the Code of Civil Procedure.
    On February 1,1872, the C., W. & S. H. E. E. Co., was engaged in constructing its road through Watertown, from Carthage to Sackett’s Harbor, and had reached Mill street in Watertown. At this time the U. & B. E. E. E. Co. was operating a, road from Utica to Carthage. On February 1,1872, the U. & B. E. E. E. Co. leased perpetually the C.,W. & S. H. E. E. Co., so far as completed,and was to lease and operate the rest when completed, on notice and request by the latter company, and thereupon this lease was to become one of the “ entire road and railroad property and appurtenances. ” In going on from Mill street towards Sackett’s Harbor it became necessary to pass through the land in question. The company wanted a strip twenty feet wide, but bought the whole piece in November, 1872, of its owners, Shead & Graves, and passed through the middle of it on an east and west line. The 0., W. & S. H. E. E. Co. reserved twenty feet in the middle for itself, and also twenty feet parallel for the E., W. & O. E. E. Co. On December, 1872, it sold the part south of its twenty foot strip. Just at this time it was agreed by deed of the E., W. & 0. E. E. Co., and the 0., W. & S. H. E. E. Oo., that the latter need construct but a single track over the lot in question, and should occupy only the twenty foot strip. There was then left a narrow, irregular strip on the north of the rights of way. This is in suit here. In 1874 the 0., W. & S. H. E. E. Co. completed its road, and on notice the U. & B. E. E. E. Co. assumed control of it. In July, 1885, plaintiff, by verbal agreement with the president of the C., W. & S. H. E. E. Co., went into the possession of the irregular strip, and in May, 1886, paid the price and took a deed from that corporation. In April, 1886, the U. & B. E. E. E. Co., leased in perpetuity all of its own and all its leased lines to the R.,W. & O. E. E. Co., which is now in control of them. In 1887 plaintiff begun to construct a building on his lot, but was notified by the E., W. & 0. E. E. Co., that it claimed possession under its lease of the U. & B. E. E. E. Co., and legal action was threatened. Before all these transactions, and on August 1,1871, the C.,W. & S. H. E. E. Co. had mortgaged its road and property for §150,000. This covered the road from Carthage to Mill street. On September 26, 1873, it made a second mortgage of the same amount. This was a first lien on the road from Mill street to Sackett’s Harbor, and a second lien upon it from Carthage to Mill street. The premises, before plaintiff’s time, had never been used or occujDied at all The court found the premises were not large enough or adapted to railroad purposes. The General Eailroad Act, § 28, subd. 3, provides that a company “ may purchase, hold and use all such real estate and other property as may be necessary for the construction and maintenance of its railroad and stations and other accomodations necessary to accomplish the purposes of its incorporation.”
    Besides the defendant above named in the title, the only party defendant was the U. & B. E. E. E. Oo.
    
      Bdmun B. Wynn, for app’lts; J. Mullen, for resp’t.
   Hardest, P. J.

After a careful examination of the exceptions taken during the progress oi the trial, we are of the opinion that they present no error requiring an interference with the decision made at the circuit.

2. Section 1639 of the Code of Civil Procedure prescribes what the complaint must set forth in actions of this character, and subdivision three thereof is as follows: That the defendant unjustly claims an estate therein of the character specified in the last section.” The complaint sufficiently complies with that provision of the statute, as it contains the following language, viz.: “ That the defendants unjustly claim an estate in these premises in fee or for life, or for a term of years- not less than ten years, or in reversion or remainder, by virtue of a lease or conveyance made by said Carthage, Watertown & Saclcett’s Harbor Eailroad Company, which said lease or conveyance, and all rights thereunder, the defendant, The Borne, Watertown & Ogdensburgh Eailroad Company now claims to own.”

Upon the trial no motion for a nonsuit or to dismiss the plaintiff’s complaint was made when the plaintiff rested, nor at the close of the evidence.

In Davis v. Read, 65 N. Y., 566, some of the defendants appeared and disclaimed, but as to them it was held that an issue was raised which threw the “ burden upon the plaintiff of establishing the fact of their claim,” and no evidence having been given thereon the complaint should have been dismissed as to them, with costs. In the case before us no such disclaimer was made by the pleadings, nor by any position taken upon the trial. Under such circumstances, we think that we should assume that the Utica & Black River Railroad Company, as well as the other corporation, made claim to the property in question, and that it cannot now be heard to raise the objection that no proof was given by the plaintiff as to his claim. Fisher v. Hepburn, 48 N. Y., 41; Davis v. Read, 65 id., 566; Barnard v. Simms, 42 Barb., 304.

3. The mortgagees are not parties to this action, and their rights cannot be affected thereby, and it is therefore unimportant to consider the question suggested in the appellant’s points in respect to their supposed claims upon the premises in question.

By § 1645 of the Code of Civil Procedure, it is provided that the final judgment must be to the effect that the defendant and every person claiming under him by title accruing after the filing of the judgment roll, or of the notice of tire pendency of the action * * * be forever barred from all claim to any estate of inheritance, or for life or for a term of years not less than ten in the property.” The mortgagees referred to did not hold title (or even a lien) accruing after the filing of the judgment roll.

The instrument of February 1, 1872, executed by the Carthage & Sacketts Harbor Railroad Company leased all its property, real, personal and mixed by them acquired for their railroad purposes or pertaining thereto now held or owned by them therefor.” It satisfactorily appeared by the evidence that the premises in question were not acquired for railroad purposes, and they were not held or owned by them (the railroad) therefor.” In the subsequent clause in the lease it was provided that the instrument, a lease, should, upon a certain condition, become and be “ a lease of the entire road and railroad property and appurtenances as above provided in regard to the road from Carthage to Watertown from Carthage to Sacketts Harbor, and then all and singular the provisions and agreements herein contained shall be deemed to be, and shall in all places be taken and applied to a lease of the entire road,” with certain exceptions not important to mention.

We think this latter language is to be construed with that to which we have just referred, and that the premises in question were not acquired for railroad purposes or pertaining thereto and we are also of the opinion that the premises were not “ held or owned by them (the Carthage Eailroad,Company) therefor,” and that the proper construction was given at the circuit of the instrument in question. And we are satisfied with the views expressed in the opinion delivered by the trial judge on the subject of the plaintiff’s title to the premises, and his right to maintain this action. We think the decision is right on the merits and should be sustained.

Judgment affirmed, with costs.

Martin, J., concurs; Merwin, J., not sitting.  