
    Isabella Tucker Newell et al., Resp’ts, v. Manhattan Railway Company et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1894.)
    
    1. Pleading—Answer—Adequate remedy at law.
    Defense of adequate remedy at law must be pleaded.
    3, Parties—Elevated railway company—Grantor and grantee.
    In an action against an elevated railway company for damages to abutting premises and'for an injunction, the company, after judgment, cannot object that the grantor of the premises was joined as plaintiff with the infant grantee.
    
      3. Railroads—Elevated—Infant—Conveyance.
    The court cannot appoint a special guardian for an infant plaintiff, in an action against an elevated railway, and authorize him to convey the infant’s interest, where no such relief is demanded in the complaint.
    Appeal from a judgment awarding damages and enjoining the operation of the road, unless the company pays a specified sum for a conveyance of the easements taken and impaired.
    
      Ezra A. Tuttle, for app’lts; Elijohalet W. Tyler, for resp’ts.
   Follett, J.

On the trial a joint equitable cause of action in favor of Sarah B. Tucker and Isabella Tucker Newell, two of the plaintiffs, and a joint legal cause of action in favor of all three plaintiffs, were established. Both causes of action arose out of injuries to real property. The defendants, not having objected, by demurrer or by answer, that there was a misjoinder or defect of parties plaintiff, or that causes of action were improperly united, have waived these objections. Code Civ. Pro., § 499. A defendant in an equitable action cannot avail himself of the defense that a plaintiff has an adequate remedy at law, unless it is pleaded in the answer. Truscott v. King, 6 N. Y. 147; Cox v. James, 45 id. 557, 562; Town of Mentz v. Cook, 108 id. 504; 18 St. Rep. 845 ; Ostrander v. Weber, 114 N. Y. 95; 22 St. Rep. 979; Hyatt v. Ingalls, 124 N. Y. 93, 105; 35 St. Rep. 114; Buffalo Stone & Cement Co. v. Delaware, L. & W. R. Co., 130 N. Y. 152; 41 St. Rep. 259; Watts v. Adler, 130 N. Y. 646; 41 St. Rep. 325; De Bussierre v. Holladay, 4 Abb. N. C. 111; 55 How. Pr. 210, so far as it conflicts in the causes cited, is overruled. Sarah B. Tucker and Isabella Tucker Newell, being the owners of the fee, had the right to maintain this action in‘equity to restrain the defendants from maintaining their road, and, incidentally, to recover such damages as they had sustained by the past trespasses; and it is the usual rule that in equitable actions all persons- having interests in the controversy should be made plaintiffs or defendants, and their interests determined. The presence of Mrs. Dayton as a plaintiff in this action does not harm the defendants, but prevents the necessity of another action; and the defendants should not, now or hereafter, be permitted to raise this defense.

The appellants urge that the conveyance by Mrs. Dayton of her one-third interest in the premises to her sisters, having been made while the grantees were infants, they may evade the grant when they reach their majority, and thus expose the defendants to an action in behalf of Mrs. Dayton. Isabella Tucker Newell became twenty-one years of age October 15, 1892, since which date she has prosecuted this action to judgment, and it is now too late for her to repudiate the conveyance. Should Sarah R. Tucker, on becoming of full age, repudiate the grant to her, a one-sixth interest would revert to Mrs. Dayton, who is a party plaintiff in this action; and she would be estopped by the judgment herein, which she has aided to secure, from prosecuting another action on the claim enforced by her in this suit. The presence of Mrs. Dayton as party plaintiff is a protection to the defendants’ present and future-interests.

The part of the judgment awarding an injunction unless the defendants pay $7,500 upon receiving a conveyance of the easements rests on the theory that the court had power to appoint in this action a special guardian for the infant plaintiff, and authorize the guardian to convey the ward’s interest to the defendants. This is not a proceeding to sell an infant’s real estate, nor is it an action of partition, nor was it brought for the purpose of divesting "the infant’s title. No such relief is asked for in the complaint, nor are the allegations therein sufficient to warrant such relief. And the special term erred in appointing a special guardian, and directing her to convey the infant’s title. Under such a conveyance the defendants would not acquire a legal title to the interest of the infant in the easements, and for this error the judgment should be reversed, and a new trial granted, with costs to the appellants to abide the event.

All concur.  