
    George Follett et al., Resp’ts, v. Brooklyn Elevated Railroad Company et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 2, 1895.)
    
    1. Election of remedies—Trespass or nuisance.
    In an action against an elevated railroad company for injury to abutting premises, plaintiff will not be required to elect whether he will try the cause of action for a continuing trespass or for a nuisance.
    2. Elevated railroad—Damases.
    A recovery by a proceeding against an elevated railroad for injury to-abutting premises is not affected by a conveyance pendente lite to himself individually by the cestui que trust.
    
    Appeal from a judgment', awarding an injunction unless defendants pay a certain-sum as fee damages and a certain amount as rental damages.
    
      Hoadly, Lauterhach & Johnson (IJenry L. Scheuerman, of counsel), for app’lts ; Benjamin B. Kenyon (Benjamin B. Kenyon and Woolsey Uarmalt, 'of counsel), for resp’ts.
   Pratt, J.

At the opening of the trial, defendants moved that plaintiffs be compelled to elect whether they would try the cause as for a continuing trespass, or as for a nuisance. The motion was properly denied. Under our present system, parties are allowed to plead the real facts. What benefit will result from that liberality, if, upon the trial, the party may not prove the facts as pleaded? A party has an absolute right to plead and prove the facts upon which his rights depend,—to prove them all, and to' prove them as they took place. The determination of the right that flow from those facts is-the duty of the court, which cannot properly be transferred to the party. The only motive conceivable for urging such a motion is a hope that the party might make an unwise election, to the detriment of his rights. To compel a party to take a position involving such a peril would be an abuse of discretion which would speedily be corrected by an appellate court.

The principal objection urged against the judgment is that the transfer pendente lite destroyed the right of plaintiffs to recover rental damages. The original complaint "was brought by the plaintiffs as trustees of an express trust. Two years afterwards a supplemental complaint is filed, by which it appears that the rights of the cestui qui ttust have been relinquished to the trustees. In this there it nothing that affects the merits of the action, nor the rights of the plaintiffs to • recover. In the one case the plaintiffs would be liable to account for the fruits of the judgment. In the other they are free from such liability. The only concern the defendants have with the question is that they be not compelled tO' pay their debt twice. To that danger they are not exposed.

Judgment affirmed, with costs.  