
    Samuel Friedman and Nathan Brody, Plaintiffs, v. The New York Central & Hudson River Railroad Company and The New York & Harlem Railroad Company, Defendants.
    (Supreme Court, New York Special Term,
    November, 1906.)
    Abutting owners — Right of action against railway as affected by change of title or interest in property affected — Rights of person acquiring title after building of road.
    Former adjudication — Causes of action barred, etc.— Identity of causes of action.
    The owners of premises abutting upon a street or avenue through which passes an elevated railroad, who took title after the erection of the railway structure, with notice that the antecedent owner at the time of its erection had recovered, in a similar action for an injunction and damages, the full damages to the fee by reason of the erection of the structure and operation of the road, and when she conveyed the premises had reserved the right of action and demand, are estopped from maintaining a subsequent action for the same relief.
    Issues of law upon a' demurrer by the plaintiffs to a separate defense set up in the answer.
    Arnstein & Levy (George W. Files, of counsel), for demurrer.
    Ira A. Place (Alexander S. Lyman, of counsel), opposed.
   Giegerich, J.

The action is the ordinary one against an elevated railroad for an injunction and damages against the defendants for maintaining and operating their structure in front of the plaintiffs’ premises. One Alary E. Maurer, a predecessor in title of the plaintiffs, and the one from whom, through a chain of mesne conveyances, they obtained their title, began an action similar to the present one on the 16th day of March, 1900, and on the 30th day of September, 1905, obtained a judgment awarding her the sum of $2,600 as fee damages, which judgment is still in full force and effect. It further appears that in October, 1904, she conveyed the premises to certain intermediate grantees, reserving, however, her right of action and demand above mentioned; and those grantees in turn conveyed the premises subject to the same right of action and demand, which reservation was continued in the several subsequent mesne conveyances, except the one to fhe plaintiffs, who, it is alleged, took title with full notice of all reservations and equities created and existing between the said Mary E. Maurer and the successive owners of the premises; and that the plaintiffs herein are mere naked i vustees of the easements of light, air and access, so far as i he same are taken by the operation of the railroad structure in front of the said premises; and that the judgment obtained in said action by said Mary E. Maurer is res ad judicata upon all the issues presented by the complaint. In support of the demurrer it is contended that the reservations above mentioned were not covenants running with the land, but were simply personal contracts. However this may be, the plaintiffs are bound by the notice conveyed in the various deeds'in their chain of title, and would have no equitable interest in any recovery of damages for injury to the easements mentioned, that interest being vested exclusively in the former owner, Mary E. Maurer, who expressly reserved such rights to herself. Western Union Tel. Co. v. Shepard, 169 N. Y. 170 It is true that the right to sue for such damages is vested in the person who is at the time the owner of the premises, and such person is a trustee for his predecessor in title, in whose favor the reservation was made, as to all moneys received or judgments recovered for the invasion or destruction of the easements. McKenna v. Brooklyn Union El. R. R. Co., 184 N. Y. 391, and cases cited. But where, as appears to be the case here, the predecessor in title, who alone has any equitable interest in the money or judgment that may be recovered, has prosecuted the action to judgment, and that judgment is in full force and effect, there is no equity existing to support the trust which would otherwise be vested in the plaintiffs, and their action must fail. If Mary E. Maurer had continued to be the owner of the property it is manifest that she would be bound by the judgment she has1 obtained, and would be es-topped from maintaining a subsequent action for the same relief, and it is difficult to see how the plaintiffs, who would otherwise have power to sue as trustees in her behalf, arc not, under the circumstances here shown, equally estopped from maintaining a subsequent action. The demurrer is overruled, with costs to the defendants.

Demurrer overruled, with costs to defendants.  