
    John E. Stilwell, Plaintiff, v. Elizabeth T. Kenedy et al., Defendants.
    (Supreme Court, New York Special Term,
    November, 1901.)
    Elevated railroad — Reservation by grantor of all claims against — Grantee as trustee for grantor for subsequent rental damages.
    Although as a general rule a grantor cannot reserve easements, appurtenant to the grant, and which have been invaded by an elevated railroad, yet where the deed of the premises abutting on such a railroad and a contemporaneous agreement of the parties indicate their intention to be that the grantor shall have the benefit of any judgment thereafter rendered in any action brought by either party for fee or rental damages, less a certain percentage payable to the grantee, the grantor may, where the grantee subsequently recovers rental damages of the elevated railroad, recover of her her said recovery, less her percentage, as she has become as to him a trustee thereof.
    Action to recover on express covenant.
    John M. Shedd, for plaintiff.
    Jeroloman & Arrowsmith, for defendant Kenedy.
   McAdam, J.

This cause was tried by the late Mr. Justice ' Smyth, but was not decided by him. By stipulation of the par-. ties, it is now submitted to me for decision.

On November 18, 1891, the plaintiff sold at public auction to defendant Kenedy a piece of real property on Third avenue, in this city, abutting the elevated railroad, and in the terms of sale it is stated that “ the owner reserves all claims for damages against the elevated railroad company.” On December twenty-third fol-. lowing the plaintiff delivered a deed of said premises to said defendant, in which instrument appears the following reservation: “ The party of the first part hereby reserves to himself, his executors and 'administrators, all claims for damages against the elevated railroad companies whose roads pass said premises on Third avenue, and all. damages which may be recovered in any action or actions now pending between said party of the first part and said elevated railroad companies and each of them, together with the right to prosecute said action or actions to a determination or otherwise dispose of the same; and the cause or causes of action stated or intended to be stated in the complaint or complaints in said action or actions shall be and remain the sole property and choses in action of the said party of the first part, his heirs, executors and administrators, to be prosecuted in said action or actions, or through the action or actions which may be brought for that purpose.”

At the same time, with the delivery of the deed, there was executed hy the parties thereto an agreement in which the grantee states that she purchased the premises in question subject to all claims for damages for injury to said premises by reason of the erection and maintenance of the elevated railway in front thereof, which belong of right to John Edwin Stilwell, said owner, for rental loss and damage to the fee value, and for which he has brought an action. Therefore, I do hereby agree, in consideration of said sale to me and of the further sum of one dollar to me paid, that I shall and will at any time when the said action is settled, by compromise or judgment, execute and deliver to said elevated railway, conjointly with said John Edwin Stilwell, such release as it may require for the purpose of releasing to it such easements in said street as it now occupies and possesses in its present condition.” And the grantor promised in said last-named agreement to pay the grantee seven and one-half per cent, of the gross amount of damages received by him from the elevated railroad.

As stated in the deed and agreement, at the time of their execution, the usual abutter’s action was pending between the plaintiff and the elevated railroad for an injunction and rental damage, and in said action Mr. Leo 0. Dessar, a defendant in this action, was the plaintiff’s attorney. In March, 1895, the defendant Kenedy, by her attorney, the defendant Leo C. Dessar, brought an action for an injunction and rental damage to the property in question against the elevated railroad, and judgment'was rendered in her favor for $1,125, fee and rental damage, November 20, 1897, of which amount she received $934.55. The plaintiff’s action has not been tried. The evidence shows that the defendants had due notice of any rights the plaintiff had in the premises.

It is settled law that a grantor of real property cannot, by any reservation in the deed, reserve to himself easements appurtenant to the premises which are invaded by the construction, maintenance and operation of an elevated railway (Kernochan v. New York El. R. R. Co., 128 N. Y. 568; Pegram v. New York El. R. R. Co., 147 id. 135; Shepard v. Metropolitan El. R. Co., 82 Hun, 527); so that the reservation in plaintiff’s deed and the contemporaneous agreement could give him no right to fee 'damage or for subsequent rental damage against. the elevated railroad. As against the immediate grantee, the defendant Kenedy, a different question is presented. Erom an inspection of the deed and the agreement, it is apparent that the intent of the parties was that the plaintiff should have the benefit of any judgment which might be rendered in any action brought by either of the parties for rental and fee damage to the premises conveyed, and that his cause of action should not be affected by the transfer. The defendant is, therefore, a trustee for the plaintiff with respect to the amount recovered in her action, less the percentage payable to her by the agreement. See Pegram v. New York El. R. R. Co., 147 N. Y. 148.

It was held in Shepard v. Metropolitan El. R. Co., 82 Hun, 527,' that a grantor who had attempted to reserve easements of light, air and access was not entitled to intervene in an action brought by a subsequent grantee against the elevated railroad, and that no trust relation existed between the grantor and its grantees. In this case, however, there is something more than an attempted reservation; and the defendant Kenedy, plaintiff’s immediate grantee, agreed to join with the grantor in a conveyance to the elevated railroad. See also Western Union Tel. Co. v. Shepard, 49 App. Div. 345. There must be judgment for plaintiff against the defendant Kenedy.

Judgment for plaintiff against defendant Kenedy.  