
    Ruth R. Hutton, Respondent, v. The Metropolitan Elevated Railway Company and The Manhattan Railway Company, Appellants.
    
      Trespass by an elevated railroad — effect of a conveyance by an abutting owner upon her right and that of her grantee, to an injunction—an action, in equity changed to one at law.
    
    The right of an owner of premises to maintain an action against an elevated railroad company for an injunction to restrain the continuance of a trespass which affects the enjoyment thereof, ceases to exist when the premises are conveyed to another, and there remains to the grantor only the right to recover for the past damages sustained during her ownership of the property.
    Where the grantee, to whom such former owner has also assigned all claims for such past damages (set forth in an action previously brought by such former owner against the elevated railroad company for an injunction to restrain the trespass and for the recovery of such damages), has been substituted as plaintiff therein, under section 756 of the Code of Civil Procedure, and has served a supplemental complaint, in which she has made no claim to be entitled In her own right to continue the action for the purpose of securing an injunction to restrain trespasses committed by the railroad after she became the owner of the premises, the action becomes one at law for the recovery of damages only, and as such is properly triable by a jury.
    Appeal by the defendants, The Metropolitan Elevated Eailway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, Euth E. Hutton, entered in the office of the clerk of the county of New York on the 21st day of December, 1896, upon the decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring up for review an order entered in said clerk’s office on. the 2d day of January, 1895, substituting the said Euth E. Hutton, as sole party plaintiff in the action in place of the original plaintiff, Louisa C. Bohrbach.
    
      Sherrill Babcock and Julien T. Davies, for the appellants.
    
      William G. Peckham, for the respondent.
   Rumsey, J.:

In 1888 Louisa C. Bohrbach was the owner of the premises in question. In 1890 she brought an action to restrain the operation and maintenance of the defendants’ railroad as a nuisance and for damages. While this action was pending, and in 1891, she conveyed the premises to the present plaintiff, and afterwards, on the 27th .day of November, 1894, she assigned to Mrs. Hutton all her .claim for'damages sustained by her for impairment of the rental value of "the premises caused by said companies in the maintenance of their railroad and the operation of. trains thereon during her ownership of the premises. Subsequently, in the month of January, 1895, Mrs. Hutton presented this assignment to the court, and ■upon her motion'she was substituted as party plaintiff in the action in the place of Mrs. Rohrbach, and was. permitted to serve a supple-, mental complaint, which, she did. The action was afterwards brought to trial at the Special Term as an equity action, to procure an injunction against the maintenance and operation of the defendants’ railroad and also, as incidental to that, damages suffered by the owner of-the premise^.by. the impairment- of the rental value. Upon- the opening of the trial, and before any evidence was given,the defendants déniaiided a jury trial, insisting, that the action was simply one for damages, and that no-equitable right of Mrs. Hutton was involved. This application of the defendants was denied, and the case went to trial "in the usual manner in which an equity case is tried. The trial resulted in the usual- judgment-for an injunction or á certain amount as damages. Ff'om that judgment this appeal is taken. In the notice- of appeal the defendants give notice that they will bring up for review the order allowing the substitution of the plaintiff and giving her leave to file a supplemental complaint.

’ A brief consideration of the rules which have been established, regulating the effect of -transfers of the title to property upon the. rights of plaintiffs in this kind of. actions will easily enable us to decide the- questions presented here. While Mrs. Rohrbach was the owner of this property there belonged to her, as incidental to such ownership, the right to restrain the continuance of the tres^ passes which destroyed her easements .of light, air and access; and ' as- incidental to 'that right she had the additional right, to- recover ' such damages as she had suffered because of those trespasses. during their continuance. But this fight, to recover damages was strictly incidental to her ownership of the premises. When she conveyed the premises the easements passed with .the conveyance. ■ From that time on she had no further interest either in the premises or in the easements connected with them; and,, therefore, there was- no occasion for her to maintain ah action to restrain the Continuance of the 'trespasses, : '

In accordance with this principle it has been held, and it must now be regarded as the settled law of this State, that when the owner of premises has sold and conveyed them his right of action to restrain the continuance of a trespass which affects the enjoyment of the premises, or interferes with the easements of light, air and access, ceases to exist. (P appenheim, v. Met. El. Ry. Co., 128 N. Y. 436; Mooney v. N. Y. El. R. R. Co., 13 App. Div. 380; Pegram v. N. Y. El. R. R. Co., 147 N. Y. 135.) The right to maintain an action for an injunction, based upon past trespasses, has entirely expired, because the person who was inconvenienced by those trespasses has ceased to have any title to the property, and the person to whom the title wás conveyed had not been affected by the continuance of the trespass during the previous ownership; and any right of action which such subsequent owner has to restrain those trespasses is one that may arise in his favor after the conveyance, and exists only if the trespasses continue after his ownership of the property. If the trespass should cease when he obtained the title, then, of course, he would have no reason to complain and no right of action to obtain an injunction.

All that was left in Mrs. Rohrbach, after she had conveyed the property to Mrs. Hutton, was the right to recover for the past damages which she had sustained during the' time of her ownership of the property (cases cited, supra), so that, after she had conveyed to Hutton, it was only possible for her in this action to recover such damages as she had sustained because of the impairment of her easements while she was the owner. In the month of November, 1894, this right of action was assigned to Mrs. Hutton. Before that time the latter had no interest whatever in this action. She had no right to sue to restrain the defendants because she was not the owner when the trespasses complained of in this action were committed ; and she had no right of action for damages because the damages belonged to Mrs. Rohrbach. Whatever may have been her relation to the property, as to this action she was an entire stranger. All that she received by the assignment was the right to be substituted in the place of Mrs. Rohrbach after Mrs. Rohrbach had assigned to her the right to these damages which she might have recovered in the action. Having become the owner of the right to recover the damages, she was properly substituted.as plaintiff in the action. (Code Civ: Proc. § 756.) Having been substituted in the action, was proper, in the .discretion of the court, if it saw fit, to permit her; to serve á supplemental complaint setting out the manner in which ■she obtained the right to' prosecute the' action. ' When this supplemental complaint is examined it will appear that there is ho claim in it on the part of Mrs. .Hutton to maintain this action for the purpose of securing an injunction to restrain the trespasses committed after she became the owner' of the premises. , It contains no allegation whatever in that regard, . It contains simply an .allegation that' the premises were conveyed. to her on the 1st of April, 1891, and that,, after that time, Mrs. Rohrbach assigned' to her her Causes of ■ action against the .defendants for damages on account of the impairment of the rental value of the said premises, and that she (Mrs. Hutton) is now the sole owner of the premises and the easements •referred to in the action,, and the sole party in'interest in the action.. It further says that she lias' been substituted' as party plaintiff, but. it contains no allegation that there had been, any trespasses committed which affected the value of the premises or their use during the time-of her ownership. The supplemental complaint, therefore, had no effect to' change the cause of action for damages which existed in favor óf Mrs. Rohrbach, after she .sold the property, into a cause of action in favor of Mrs. Hutton to restrain-the continuance of the trespass. As it was presented at the trial, the action- -was simply-one for the recovery of damages which Mrs. Rohrbach had sustained during the time that she owned the premises, because of the impairment of their rental value, and which she had assigned to Mrs. Hutton. This. cause of action was. clearly triable by, a jury.. and not otherwise. • It was not claimed that the dainages were recoverable as incidental to the right to equitable relief, because, the right to equitable relief in this action was entirely gone. For that reason-it was error on the part of the court' to refuse the defendants’ demand for a trial by jury.

The judgment must, therefore, be reversed and a new' trial granted, with costs to the appellants to abide the event.

- Patterson, O’Brien,. Ingraham, and Parker, JJ., concurred. '-

Judgment' reversed,. new trial granted, costs to appellants to abide event.  