
    David Sears et al., Resp’ts, v. The Metropolitan Elevated R. Co. et al, App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed April 6, 1891.)
    
    Title—Partition.
    A will directed a certain share of testator’s real estate to be set off to a trustee for the life of plaintiffs’ mother, remainder in fee to plaintiffs. In an action of partition, to which all persons interested were parties, the premises in question were so set off. Held, that the parties who received the fee of other lands in such action could not claim an interest in these lands, and that plaintiffs’ mother having died, the estate of the trustee ceased and plaintiffs’ title became absolute.
    Appeal by the defendants from a judgment of the special term, enjoining the operation of the defendants’ elevated railroad in front of the premises No. 27 Park place and Nos. 24 and 26 Murray street, unless the defendants pay to the plaintiffs $25,000, with interest from November 14, 1890, the date of said judgment, for a conveyance of their easements in said streets taken by defendants for the use of said railroad; and also awarding to the plaintiffs the sum of $400 for damages to the rental value of said premises from March 27, 1888, to June 26, 1888, and $3,000 for damages to the rental value thereof from June 26, 1888, to May 15, 1890, $906.87 costs, disbursements and allowances.
    
      Edward C. James, for app’lts; G. Willett Van Nest, for resp’ts.
   Per Curiam.

It is claimed by the learned counsel for the appellants that the plaintiffs did not show title to the land, appurtenant easements to which have been taken as the complaint charges. The supposed defects in the title, as claimed, arise from the noncompliance with certain of the provisions of the will of one Hoyt, from whom the title comes.

If the land is a part of a share described in the will which was to be set off to the trustee for the mother of the present plaintiffs for her life, then under the will the plaintiffs took the remainder in fee at her death. This setting off was accomplished by the partition suit, to which all persons who could question plaintiffs’ title to the land were parties. These parties having received in lieu of undivided interests the whole of the fee of the other parcel of land, cannot claim that they have an undivided interest in the land conveyed by the referee to Hoyt as trustee for plaintiffs’ mother. The mother having died, the legal estate of the trustee then ceased.

The defendants have not a right to a jury trial in this case, as the action is for equitable relief. When a plaintiff brings an action for both legal and equitable relief, in respect of the same cause of action, the case presented is not one of right triable by jury under the constitution.” Cogswell v. N.Y., N. H. & H. R R. Co., 105 N. Y., 319; 7 N. Y. State Rep., 203.

Judgment affirmed, with costs.

Sedgwick, Ch. J., Tbuax and Dugro, JJ., concur.  