
    Otto Hirsh, Respondent, v. Manhattan Railway Company, Appellant.
    
      Defense of another action pending for the same cause—proof as to its present existence — effect of the service of a summons only — waiver of the defense — action for an injunction and, for past damages against an elevated railway — enforcement therein of a claim for damages assigned to such abutting owner — waiver of objection thereto — a pending action by the former owner is not a bar to one by the present owner.
    
    The plea of a former action pending constitutes an affirmative defense which can be supported only by showing, as a matter of fact, that the former suit was brought upon the same cause of action and was pending undetermined at the time the later suit was commenced. Service of the summons in the former action, coupled with a finding that such action had never been brought to trial, is insufficient to show that the action was pending at the time the second action was commenced.
    To support the plea it must appear that a pleading was served in the former action setting up the same cause of action sought to be enforced in the later action, as the mere service of the summons in the former action,, with intent at the time to enforce the same cause of action set up in the' later action, would not estop the plaintiff from alleging an entirely different cause of action in his pleading.
    Where the defendant in an action interposes in his answer the plea of a former action pending, but does not urge such defense upon the trial, he will be deemed to have waived it and will not be heard in support thereof for the first time upon appeal.
    Kaufman Hirsh, who was the owner of property abutting upon a street in the city of Hew York, brought an action in equity to enjoin the maintenance and operation of an elevated railroad in front of his premises. Before the action had been brought to trial Kaufman Hirsh died, leaving a will by which he devised the property to .Otto Hirsh. The executors of Kaufman Hirsh assigned to Otto Hirsh their right to all the past damages which they might have recovered, and Otto Hirsh then brought an action against the elevated railroad company to enjoin the maintenance and operation of the railroad and to recover past damages.
    
      Held, that the former action was not a bar against the right of Otto . Hirsh to maintain an action to procure injunctive relief, and, as an incident thereto, to recover the past damages which he had sustained from the time when he succeeded to the title;
    That, as to the past damages which had accrued prior to the time when Otto Hirsh acquired" title, he having received an assignment of them from the executors of Kaufman Hirsh, the court would, for the purpose of preventing a multiplicity of actions and of effecting a complete determination of the controversy, allow him to recover in the equitable action the past damages which had been assigned to him;
    That, even if Otto Hirsh was not, as a matter of strict legal right, entitled to recover in the equitable action the past damages which had been assigned to him, it was competent for the elevated railroad company to waive this objection and that it had done so by permitting, without objection, the equitable action to be tried upon the theory that the past damages in question could be recovered therein.
    Van Brunt, P. J., dissented.
    Appeal by the defendant, the Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of September, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, restraining the defendant from maintaining and operating an elevated railroad in front of the plaintiff’s property unless within a certain time it pays the plaintiff certain damages.
    
      Frederick AlUs, for the appellant.
    
      W. G. Peckham, for the respondent.
   Hatch, J.:

This is an appeal by the defendant from a judgment enjoining it from further maintaining and operating its elevated railroad in front of plaintiff’s property, No. 1325 Third avenue in the city of New York, unless within a certain time it pays to plaintiff the sum of $2,000 and interest from October 15, 1901, the date of the trial, as compensation for fee damages, and also the sum of $2,013.46 for-past rental damages from August 2, 1889 (a date six years prior to the commencement of this action), to the date of the trial, being at the rate of about $165 per year, which, together with costs and fee damages, makes a total recovery of about $221.85 per foot front for damages to property. The building upon the premises is a five-story brick store and tenement house built in 1868 and about fifty feet in depth. The store is rented to a barber, the basement to a tinsmith, and each upper floor is let as one .apartment: It has had modern improvements since 1898. The defendant’s road at this point consists of three tracks and a station platform. The distance from the house line .to the nearest track is thirty-six feet; to the station platform .twenty-four feet.

■ The defendant contends that these damages are excessive, and that this action cannot be maintained because of the pendency of another action against this defendant by a former owner of the premises. One Kaufman Hirsh, father of the plaintiff, acquired title to the premises in question on the 2d of December, 1884. ■ On the 27th of December, 1893, he died in possession thereof, leaving a will by which he devised the same to the plaintiff in fee. Such, will was duly admitted to probate and the. executors appointed therein have duly qualified. On the 8th day of March, 1888, Kaufman Hirsh brought suit against the New'York Elevated Railroad Company for an injunction and incidental past damages on account of the construction, maintenance and operation of the elevated railway in front of the premises in question. That action never reached a trial. ■ On the 11th of July, 1895, the executors of the will .of Kaufman Hirsh assigned to the plaintiff all the cause of action owned by their testator for injury to the rental value of the premises, and plaintiff brought this action on the 2d day of August, 1895. By way of defense the defendant has pleaded the pendency of the former action brought' by Kaufman Hirsh.

The defendant by its'appeal presents two questions for our consideration : First, that the defense of a former action pending was erroneously overruled, and, second, that the damages awarded are excessive and contrary to the evidence. The former suit pending was properly pleaded, but such plea does not appear to have been urged upon the trial as a defense, nor was there any objection taken or motion made which raised such question. At the close of the whole case defendant’s counsel moved to dismiss the complaint upon the- ground that the plaintiff had failed to show pecuniary damages as the result of the construction, maintenance and operation of the defendant’s road. This was the only motion made upon the trial, and when made it appeared by the admission that a summons in an action brought by Kaufman Hirsh against the defendant Manhattan Railway Company for an injunction and damages in respect of the premises in suit was served on March 8,1888, but no evidence was offered to show what, if any, disposition had been made of such action, and it does not affirmatively appear that it was in fact pending at the time of the trial of this action. If it had been discontinued at any time before the trial was finished or at its conclusion it would be a complete answer to the plea. (Crossman v. Universal Rubber Co., 131 N. Y. 636.) Such a plea constitutes an affirmative defense (Code Civ. Proc. §§ 488, 498), and can only be supported by showing as matter of fact that the former suit was pending when the second action was commenced: (Porter v. Kingsbury, 77 N. Y. 164.) There is no proof in the present case that the action brought by Kaufman Hirsh was pending when this action ivas instituted. The only thing which appears upon the subject, aside from the admission of the service of the summons, is found in the decision of the court, which states : The said action never reached trial.” This statement is quite as consistent with the fact that it had been discontinued as that it was pending. Proof of the commencement of an action is not sufficient to show that it is an action pending at the time when the plea is interposed. The party interposing such plea is bound to show as matter of fact the continued existence of such suit as a pending action. When that is shown then it devolves upon the party against whom the plea is interposed to show a discontinuance by some form of judicial declaration. (Crossman v. Universal Rubber Co., supra.) But until it is made affirmatively to appear that the action is pending and undetermined, the proof is insufficient upon which to found a plea in abatement. The admission in the present case is in the following language: “ It is admitted that the summons in the action of Kaufman Hirsh v. Man. Ry. Co. for an injunction and damages in respect to the premises in suit was served March 8th, 1888.” It is quite doubtful whether this admission is sufficient to show that a suit for the same cause of action for which the present one was instituted was ever commenced. It. is well settled that it is not permissible to show by parol proof what an action is for if the summons only was served. To constitute a pending action, it must appear that a pleading was served, which sought to obtain relief based upon the same facts as is the action against which the plea is interposed. The mere service of the summons, although it was intended at the time to enforce the same rights upon the same facts, is insufficient to support the plea, as the party might, in his declaration, count upon an entirely different cause of action. (Curry v. Wiborn, 12 App. Div. 1; Phelps v. Gee, 29 Hun, 202.) In addition to this, the defendant, not having raised any question by motion or objection which indicated any reliance upon the plea which had been interposed, and basing its motion for a dismissal upon a distinct ground which did not involve ■such question, it must be deemed to have .waived this defense, and' cannot now for the first time be heard' upon such question in this court. (Lynch v. Met. El. Ry. Co., 129 N. Y. 274; Pegram v. El. R. R. Co., 147 id. 135.)

' But even if these technical reasons were not to prevail, we are of opinion that the plea is insufficient as a defense. Kaufman Hirsh devised this specific property by his will to the plaintiff. By virtue of that will there was a complete devolution of the title to the plaintiff, unincumbered by any conditions whatever. If the ■ action brought by Kaufman Hirsh was then pending, it was in a dormant state and could only be made a live action by revival in the name of the party in interest. The personal representatives in such action took no interest therein so far as the equitable relief sought to be secured was concerned. The only interest which the personal representatives of Kaufman Hirsh took was in the claim for past damages. They, however, were not entitled to equitable relief, and as the action was in equity for injunctive relief, no right existed to Lave the suit revived in their name for the purpose of recovering past damages. It is well settled in the elevated railroad adjudications that an equitable action will not be continued for the recovery of damages where the right to the equitable relief in the party entitled to the past damages has ceased to exist; consequently, the only person in interest who could be substituted as the plaintiff in the action, or have the right to such substitution, was the plaintiff in the present action. (Code Civ. Proc. § 1522.) If resort had been had to revivorship and substitution, it might have resulted in reviving the equitable action in favor of the present plaintiff and the right of recovery of past damages in the name of the personal representatives of the deceased. The latter action would be an action at law, triable by a jury, and if insisted upon by the defendant, could be tried in no other forum. The plaintiff, however, in this action, was not required to resort to any such remedy. The trespass, which furnished the basis for the action, was a continuous one, and a cause of action for such trespass arose coincident with the devolution of the title. He was then the only person in existence who could maintain an equitable action for injunctive relief. This action' he could bring at any time after title was vested in him and the trespass continued. The plea of a former suit pending would be unavailing against such an action, as the right to its maintenance depended upon the trespass of the defendant, his ownership and damage to- the property. The right was as perfect in the plaintiff at the commencement of his action as was the right at any time of his predecessors in title. It was based upon the past, present and continuous trespass after he took title and from which, if it damaged the property, so long as the easements had never been acquired, a cause of action arose, which was entirely independent of any cause of action sought to be enforced by the deceased. It follows, therefore, that the plea in bar is utterly unavailing against the plaintiff’s right to maintain an action to procure injunctive relief. The plaintiff is also clearly entitled, as an incident to such action, to recover the past damages which he has sustained from the time when he succeeded to the title up to the determination of the action, and no plea in abatement can avail to defeat these rights. As to the past damages which had accrued during the time when the deceased was the owner of the property, there is no right of recovery in the plaintiff, based solely upon his right to maintain the action for injunctive relief after he succeeded to the title. The mere ownership of the property gave him no right to the past damages. This, however, would only go to the measure of his recovery and not to his right to maintain the action. His right to recover the past damages rests upon different circumstances. It appears that prior to the commencement of the action, and after the plaintiff had succeeded to the title, he received by assignment from the personal representatives of the deceased title to all of the past damages which the estate of the deceased might have recovered. At the' time, therefore, when this action was brought, the plaintiff not- only possessed the right to obtain injunctive relief, but he had also acquired the right to enforce against the defendant and recover all of the past damages authorized by law. It has been held many times that the right to recover the damages arising out of the trespass is incidental to the granting of equitable relief. In Lynch v. Met. El. Ry. Co. (supra) it was held that where a court of equity gained jurisdiction of the action it might retain it generally, do complete justice between the parties, and award damages as incidental to the main relief sought. In Shepard v. Manhattan Ry. Co. (117 N. Y. 442) the premises, the subject of the action, were owned by certain persons as tenants in common. One tenant died intestate, leaving him surviving a widow, certain .children and heirs at law. The plaintiffs in the action' and the children of the deceased were seized in fee of the premises. "When the action was brought, the widow of the deceased tenant was joined as a party plaintiff in two capacities, one as adrnim istratrix of the deceased tenant and the other individually for a determination of her dower interest. Upon demurrer to the complaint, the court held that she was properly joined as a party in respect of her dower interest, and that in respect of her capacity as administratrix, while she might not have been a necessary party, she was held properly joined for the reason that she and the other parties were entitled to the equitable relief which the action sought to obtain, and as she was interested in the damages which might be awarded as incidental to the granting of equitable relief, she was properly brought in as administratrix, being in that capacity interested therein, and that it was proper so to do in order to avoid a mul- " tiplicity of actions and to effect a complete determination of all the matters which entered into the controversy between the parties. It was conceded in that case that she had the legal right to maintain an action at law for the recovery of past damages, but it was decided that, as equity had laid hold of the whole controversy, it would adjust and adjudicate upon the entire rights of the parties and direct such judgment as was proper. The doctrine of this case was re-enunciated in Hunter v. M. R. Co. (141 N. Y. 281). Therein the plaintiff was seized of an undivided third part of the premises affected by the operation of the railroad, being a tenant in common with a brother, two sisters and the children of a deceased sister. .Before bringing the action she acquired the interests of her cotenants' and became the sole owner of the premises. When the trial commenced the defendants moved that the action be severed and that the claim for rental damages, acquired by assignment, be sent to a jury for trial. This motion was denied, and it was held that, as the action was one in equity where the main relief sought was an injunction against the continuance of the defendants’ act in violation of the plaintiff’s property. rights, an award of damages for the past injuries would follow as an incident to the main relief, and that the plaintiff having acquired the whole interest, she was entitled to maintain the action; and showing herself entitled to equitable relief and being possessed of all the interests, the court would award past damages as incidental to the main relief to which the plaintiff was entitled. This case differs from those cases in one particular only. In the Hunter Case (supra) the successor in title had been interested in the property at the time when the right to injunctive relief and past damages accrued. In the present case the plaintiff had no interest in the property at the time when the past damages accrued during the lifetime of Kaufman Hirsh. He only acquired his title at the death of Kaufman Hirsh. The past damages were, therefore, so far independent of his right to maintain injunctive relief that he could not recover therefor, based solely upon his title ; but, when he took by assignment title to such past damages, then both as to the property and the right to enforce the claim for past damages, he stepped, as matter of fact, into the shoes of the deceased, and, under such circumstances, I see no distinction in principle between his right to have an award for the past damages and the right which was upheld in the Shepard and Hunter Cases (supra). The court in the Hunter case said : “ When the plaintiff brought her action she represented in her person every interest in the property, and if she were found and should be adjudged to be entitled to the equitable relief she demanded, in the exercise of the jurisdiction which it had acquired over the action, the court would have the right to assess the damages down to the time of trial, which had been suffered in the use of the premises. If they, as matter of fact and of law, then belonged to the plaintiff, of what consequence is it that they were not, during all the time for which they were awarded, hers to recover % This statement of reason is as applicable to the present case as it. was to the plaintiff therein. Here the whole property right, both as to equitable relief and past damages, is vested in the present plaintiff. No other person has the right to maintain an action in any form to recover either the one or the other, and the same principle which authorized the award for past damages in the Shepard and Hunter Cases (supra) is equally applicable to the plaintiff’s present situation.

I am, therefore, of opinion that the plaintiff was entitled to maintain this action and to recover therein not only the. main relief, but, as incident thereto, the past damages to which' he has acquired title. If, however, this conclusion should, be wrong, there is another and sufficient answer to the claim. In the complaint the plaintiff asked for the recovery of the past damages sustained by him and by his assignors. Such was the theory upon which the trial proceeded, and proof was given without- objection, upon this ground, of the amount of past damages sustained. The assignment through which the plaintiff took title to such. past damages was received in evidence without objection, and there was not the slightest intimation during the whole course of the trial that the plaintiff ¿ if entitled to recover at all, was not entitled to recover these damages. Conced edly, he could maintain an action at law for their recovery, and even though he was not entitled to recover in the equitable forum, yet it was quite competent for the defendant to waive its rights in this respect and consent to a litigation of the whole question. This it has done, and nowhere did it interpose objection thereto. The doctrine announced in Lynch v. Met. El. Ry. Co. (supra), therefore, finds precise application and concludes the defendant from raising any question in respect of such subject.

■ The amount that has- been awarded as damages, however, we think excessive. It is needless that discussion be had of this subject, as it announces no principle and furnishes -no precedent.

It follows that the judgment should be modified by reducing the fee damage to $1,500,.and the rental damage to $1,862.33, and as modified the judgment should be affirmed, without costs to either party in this court.

Patterson, O’Brien and Ingraham, JJ., concurred; Van Brunt, P. J., dissented.

Judgment modified by reducing the amount awarded for fee damage to $1,500, ’ and by reducing the judgment as entered forren tal damages, interest, costs and allowance, etc., to the sum of $1,862.33, and as modified affirmed, without costs.  