
    William W. Badger, Appellant, v. Isaac Mayer, Respondent.
    (City Court of New York—General Term,
    May, 1894.)
    Plaintiff was employed by defendant to prosecute an action against the elevated railroad, by injunction or otherwise, to recover damages to his leasehold interest in certain real estate, for which plaintiff was to receive one-fourth of the amount recovered. After the commencement of an action for injunctive relief and damages, the defendant disposed of his interest in the premises without notice to the plaintiff, the conveyance containing no reservation of the right of action. In an actipn to recover for the services performed by plaintiff in such suit the court refused to charge that the equitable cause of action against the railroad failed when defendant sold the property involved. Held, error; that the contract did not limit the plaintiff to the remedy by action for damages, and he having brought an action for injunctive relief, and defendant having, by his acts, destroyed that remedy, the latter was liable for the services performed before the attorney was notified £>f the conveyance.
    Appeal from a judgment entered on verdict of jury in favor of defendant.
    
      W. W. Badger, for appellant.
    
      L. B. Ma/rm and B. G. James, for respondent.
   Ehrlich, Ch. J.

The plaintiff, an attorney at law, entered into a written contract with the defendant, the owner of a leasehold estate at 1019 Third avenue, this city, whereby the plaintiff was to prosecute an action, by injunction or otherwise, against the Manhattan Railway Company, to recover damages to the leasehold interest by reason of the erection and maintenance of a railway structure of the defendant; and it was agreed that the plaintiff was to receive one-fourth of the amount recovered for his services.

The plaintiff thereupon brought an action against the com!pany in the name of the defendant, in which injunctive relief and past damages were prayed for.

Pending the action, and after considerable services had been performed therein, the defendant, without any notice to the plaintiff, disposed of his estate in the lands, and, as a consequence, the right to injunctive relief was destroyed. Pappenheim's case, 128 N. Y. 436; Kernochan's case, Id. 559; Foote v. R. R. Co., 58 Hun, 478; Filson v. Crawford, 23 N. Y. St. Repr. 335.

In the transfer made by the defendant no reservation was made of the existing right of action; so that the action brought in the defendant’s name against the railroad company fell directly within these cases.

On the trial the plaintiff’s counsel requested the trial judge to charge that the equitable cause of action against the railroad company failed when the defendant sold the property involved.

The ¿ourt declined so to charge, and the plaintiff’s counsel excepted.

Under the rulings made in the cases cited this was error, which was not cured by anything that afterwards transpired.

It is settled law that where a party prevents performance of a contract lie is liable for damages legitimately flowing from the breach, and these in this case embraced the services which the plaintiff had rendered up to the time he was notified of the fact that the defendant had transferred his property, and that the action commenced had in consequence abated.

True, the defendant did not, by the act of transfer, lose his claim for past damages; but the contract did not confine the plaintiff to that remedy alone, for it expressly provides for proceedings by injunction.

Having commenced the action for injunctive relief, and the defendant by his acts having destroyed that remedy, he could not, without compensating the plaintiff for what he had done, compel him to bring a new action for past damages alone; that was not the agreement, and, in determining the question of the breach, the status of the parties at the time the contract was made fixes their rights and liabilities.

For this reason the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event.

McCarthy, J., concurs.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  