
    Mitchell et al. v. Metropolitan El. Ry. Co. et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 9, 1890.)
    Elevated Railroads—Injuries to Abutters—Former Recovery.
    An abutting owner sued an elevated railroad company for damages for the permanent depreciation in the value of his property by the operation of its railroad. He died pending the action, which was revived and continued by his executors, who recovered a judgment for the full value of the loss. Afterwards the will under which the executors acted was adjudged invalid as a disposition of real estate, and the premises were ordered sold, and plaintiff became the purchaser. Held, that the subsequent payment by the railroad company of the judgment recovered by the executors did not affect plaintiff’s right to sue to enjoin the operation of the railroad in front of the premises in question, since the executors, having no title to the real estate, did not represent the heirs in such action.
    Appeal from special term, New York county.
    Action by Edward Mitchell and others against the Metropolitan Elevated Railway Company and the Manhattan Railroad Company. There was judgment for plaintiffs, and defendants appeal. For former report, see ante, 130.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Davies & Rapallo, (Brainerd Tolles, of counsel,) for appellants. Mitchell & Mitchell, for respondents.
   Van Brunt, P. J.

The plaintiffs commenced this action in May, 1887, for the purpose of procüring an injunction to restrain the operation of the ■defendants’ road in front of the premises Nos. 72 and 76 West Third street. It appears that the defendants’ railroad was completed and put in operation in April, 1878. In March, 1880, Daniel Schnarr, who was the owner of the premises in question, brought an action against the Metropolitan Elevated Bail way Company in the court of common pleas for the damages sustained to the premises Nos. 72 and 76 West Third street, by the erection and operation ■of this road. The action was brought to recover damages for the permanent depreciation in the value of the premises in question, caused by the construction, maintenance, and operation of the elevated railway of the defendant in front of such premises. On the 10th of December, 1880, Daniel Schnarr died, leaving him surviving, his widow, Mary Schnarr, and his daughters, Mary Magdalena Schnarr and Adelaide Hedding. He also left a last will and testament, duly executed, by which he attempted to dispose of all his real and personal estate in accordance with a certain scheme of disposition, wherein liis widow and his two daughters and the children of his daughter Adelaide Hedding were the beneficiaries. Letters testamentary were issued to the executors therein named, and the action was revived and continued by said executors. It was tried in June, 1884, and a verdict was rendered in favor of the plaintiffs, which recovery was for the whole value of the loss, and not for the mere loss of rents, and under an instruction from the court that the verdict would be full compensation to the plaintiffs, and a bar to another suit, which instruction, it appears, was excepted to upon the part of the Metropolitan Elevated Railway Company. Subsequent to the probate of the will of said Daniel Schnarr, an action was begun in the supreme court by his widow and his daughter Mary Magdalena Schnarr against Hedding and others, for a partition of the real estate whereof Daniel Schnarr died seised; and by the judgment entered it was adjudged and decreed that the said will was not a valid will for the disposition of real estate, for the reason that it unduly suspended the absolute power of alienation, and further adjudged and decreed that the premises in question, among others, be sold at public auction by the referee designated in said judgment. The premises were accordingly sold at public auction by the referee in December, 1884, and were purchased by the plaintiff Edward Mitchell, who received a deed of the same from the said referee on or about the 10th of January, 1885. The defendants subsequently paid the Schnarr judgment in full, and the only question which it is necessary to discuss in the disposition of this appeal (as all the other questions raised have been passed upon in other cases by the general term) is whether by the payment of the judgment obtained in the action of Schnarr v. Metropolitan Elevated Railway Company had acquired these easements which formed the subject-matter of the action at bar.

Upon the trial in the court below, one of the grounds upon which it would appear that the learned court disposed of the question before it was that the plaintiff, the purchaser at the auction sale, had no notice of the Schnarr judgment, or of its scope. If that judgment had been obtained by Daniel Schnarr, and had been paid under the circumstances disclosed in this case, it seems to us that the law would presume that the purchaser had notice of all the rights which the Metropolitan Elevated Railway Company had acquired by reason of the judgment, because it was in possession of the easement. It is a familiar principle of law that where a party is in possession of property, whether real or personal, it is notice to all the world of all the rights which he claims in respect to such property. A party in possession of real estate under an unrecorded deed is protected by his possession, as that is notice to the world that he has some claim, and puts the purchaser of that property upon inquiry, and lie is held not to be a purchaser in good faith until he exhausts the means of ascertaining the nature of the claim of the person in possession. Therefore the defendant in this action, being in possession of these easements, was giving notice to all the world of a claim in respect thereto, and a judgment obtained by the owner of the premises against them for permanent damages, and precluding him and all persons claiming under him from maintaining another action therefor, established in them that right. The plaintiff in this action took no means whatever of ascertaining upon what claim the Elevated Railway Company based its right of possession, and, unless such means were used, he cannot possibly be considered as not having notice of whatever claim the defendants might be able to assert. But it seems to us that, under the decision of the court of appeals in Pond v. Railway Co., 112 N. Y. 186, 19 N. E. Rep. 487, it is plainly intimated that, where a plaintiff recovers permanent damages in an action at law because of a trespass of the kind committed by the defendant on the premises in question, a new action cannot be maintained because of the continuance of the trespass. It seems to us that there can be no distinction, as to the rights of the owners of abutting premises, between a case where, against the objection of the defendant, such a recovery is had, and that in which such a recovery is had by and with the consent of the parties. Therefore if Daniel Sehnarr had obtained this judgment against the Metropolitan Elevated Railway Company it would have been a bar against the maintenance of a subsequent action because of a continuance of the trespass. But the difficulty with the defendants’ case is that Daniel Sehnarr died before the entry of the judgment, and the suit was continued by his executors, who, it has been decided, had no title whatever to the real estate. Therefore the obtaining of a judgment by them for permanent injury, and the payment of such judgment to them, ■could in no way affect the real estate in respect to which they had no title. It clearly would have been otherwise had the title been vested in the executors, so that they could have been said to have been the representatives of the heirs of the real estate in the maintenance of that action.

The judgment appealed from should be affirmed, with costs. All concur.  