
    Bach v. New York El. Ry. Co. et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 15, 1891.)
    1. Eminent Domain—Damages—Life-Tenant and Remainder-Man.
    A tenant for life, or so long as she remains unmarried, cannot maintain an action for an injunction and damages to her estate in the premises, arising from a trespass committed by an elevated railroad company in the erection of its structure in front thereof, without bringing in those interested in the fee as parties.
    2. Jury—Triad by—Question of Nuisance.
    When a complaint seeks an injunction to restrain defendants from operating its elevated railroad in front of plaintiff’s premises until payment of all damages occasioned plaintiff thereby, the cause of action is equitable only, and defendants will not be entitled to a trial by jury upon the ground that the complaint states a nuisance, when its allegations are as consistent with the action of trespass as with that of nuisance.
    Appeal from special term, New York county.
    Action by Magdalena Bach against the New York Elevated Railway Company and others. The prayer of the complaint was as follows: “First, that the defendants, and each of them, be enjoined and restrained during the plaintiff’s life from maintaining and operating the said elevated railway and railway structure in the said Ninth avenue, past and in front of the plaintiff’s said premises; second, that the defendants, and each of them, he ordered and decreed to take down and remove the said elevated railway structure in the said Ninth avenue past and in front of the plaintiff’s said premises; third, that the amount of loss and damage already sustained by the plaintiff by reason of the said maintenance and operation of the said elevated railway and railway structure in the said Ninth avenue, past and in front of the plaintiff’s said premises, be ascertained, and that the defendants be adjudged to pay the same to the plaintiff; fourth, that, if the defendants be permitted to maintain and operate the said elevated railway and railway structure in the said Ninth avenue, past and in front of the plaintiff’s said premises, they be permitted to do so only upon condition that they first pay to the plaintiff the amount of the permanent loss and damage to the plaintiff’s said estate in her said premises to be sustained by her by reason thereof, and also the amount of the loss and damage already sustained as herein alleged; fifth, that the plaintiff have her costs and disbursements in this action, and such other and further relief as to the court may seem just and equitable.” From a judgment granting an injunction and damages defendants appeal.
    Argued before Van Brunt, P, J., and Daniels, J.
    
      Davies & Rapallo, (Julien T. Davies, Samuel Blythe Rogers, and Byron Haver, of counsel,) for appellants. Sackett & Bennett, (Charles Gibson Sackett, of counsel,) for respondent.
   Van Brunt, P. J.

This action was brought for an injunction and damages arising from a trespass committed by the erection of the defendants’ railroad in front of premises 360 Ninth avenue. Upon the opening of the trial of the case, and the proof of the title of the plaintiff, it appeared that the only interest in the premises which the plaintiff had was that of a life-tenant, provided she so long remained unmarried. Objection was then taken to proceeding with the case, because the proper parties were not before the court, which objection was overruled, and exception taken; and the court, having ascertained the probable length of life of the plaintiff, gave permanent damages upon that theory, not apparently regarding the contingency that the plaintiff might marry, and thus terminate the est'ate. We think, in cases of this description, all the parties should be before the court, so that there may be a complete determination of the matter at issue, and that the defendants, in the first place, should not be required to run all the risk of the death of the plaintiff prior to the anticipated time; and, secondly, in a case such as the one at bar, should not be required to take the hazard of the plaintiff’s remarrying, because it is a well-established historical fact that women are never too old to remarry; and therefore if any claim is made, because of the age of the plaintiff, that such contingency is not to be feared, common experience shows such claim to be ill founded. The only way in which there can be a complete determination of the rights of the parties to this action is to bring in those persons who represent the fee, and then to apportion the damages in such way as may be equitable and satisfactory to the parties. Thus the defendants would acquire that which they had paid for without running the hazards to which attention has already been called. We think, therefore, that the learned judge should have compelled the other parties interested in the fee to have been brought in, so that the proper award, as a condition of refusing an injunction, might have been made. The same question as to the trial by jury, because the action was in the nature of an action for a nuisance, as was raised in the case of Sommer v. Railway Co,, ante, 619, (decided herewith,) is raised in this ease, and the disposition of it there made disposes of that exception, so far as this case is concerned. The judgment should be reversed, and a new trial ordered, with costs to appellant to abide event.  