
    Max S. Korn, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    1. Railroad—Elevated—Parties.
    The owner of the record title of abutting property may maintain an action in his own name to restrain the operation of an elevated railroad in front of said premises, and what private arrangements he may have with other parties is a matter of no consequence to the defendant proceeded against.
    
      2. Same—Contract of sale.
    Plaintiff’s right of action is not affected by the fact that before the trial he had entered into a contract for the sale of a portion of the premises.
    3. Same—Evidence.
    In an action to restrain the operation of an elevated railroad and for damages, a witness was allowed, under objection, to answer the question, “ What in your opinion is the value of that property including the easement in * * * avenue which would give to the property the use of the whole street above the surface? ” Held, no error.
    Appeal from judgment of special term enjoining defendants from maintaining and using their elevated railroad in Second avenue in front of certain premises unless they pay to the plaintiff the sum fixed for the conveyance thereof, and granting plaintiff judgment for loss of rental value, etc.
    
      E. C. James, for app’lts; J. E. Burrill, for resp’t.
   Van Brunt, P. J.

The first objection presented upon this appeal is upon fact action is brought by Max S. Korn, in whose name the title stood, and that Isidor S. Korn, who is his partner in the real estate transactions, was not joined therein as plaintiff or defendant.

Upon the trial this objection was taken, and upon it being ruled that such an objection could only be availed of by answer where it did not appear upon the face of the complaint, a motion was made to amend the answer, which motion the court denied upon the' ground that it was too late. We think, even if it was necessary to pass upon that question, that the rulings of the court in this particular were entirely correct. There was no merit in the motion to amend and no reasonable purpose to be subserved thereby except delay, and therefore there was no reasonable ground for its being granted.

But we had supposed that since the decision in the case of Sheridan v. Mayor, 68 N. Y., 30, the party who was the owner of record or by a written instrument of premises or of a cause of action may maintain in his own name, as being the real party in interest, actions in relation thereto, and what private arrangement he might have outside of his paper title was a matter of no consequence to the defendant proceeded against.

The next objection necessary to consider is the fact that as to a portion of these premises the plaintiff had entered into a contract of sale intermediate the commencement of the action and the trial thereof, which contract was not completed, however, prior to the time of the trial.

That the court was entirely right in its statement that a mere contract of sale is not a sale seems to be established by the case of Mitchell v. Bartlett, 52 Barb., 319, affirmed 51 N. Y., 447, where it is held that a purchaser upon a foreclosure sale acquires no title until the delivery of the deed. In sales of that description, and as was the fact in the case cited, a contract of sale was entered into between the referee and the purchaser precisely of as valid a nature as the contract entered into between the plaintiff in the case at bar and his purchaser, and it was distinctly held in the case cited that until the delivery of the deed the purchasers did not acquire any title, neither were-they entitled to the possession. of the land or the rents thereof, although he was charged with interest upon his purchase money because he did not take the deed when it was ready for him.

This principle was approved in Cheney v. Woodruff, 45 N. Y., 98.

The only other question presented upon this appeal is that relating to an objection to a question which was put to an expert by the court. It was as follows :

“ What in your opinion is the value of that property including the easement in Second avenue, which would give to the property the use of the whole street above the surface?”

This question was objected to upon various grounds and was overruled and the question answered.

It is claimed that under the rule laid down in McGean v. Manhattan R. Co., 117 N. Y., 219 ; 27 N. Y. State Rep., 337, the objection is well taken.

We do not think that the question conflicts with any rule laid down in that case. We know of no means of proving damages in cases of this description except by evidence of this character, and if such evidence is to be excluded then there is no basis whatever for proof upon which a recovery may be founded in these actions.

It certainly could not have -been intended by the court of appeals to shut out all testimony tending to prove the value of the easement which was taken, by anything that was said in the case ■cited.

The case of McGean v. Manhattan Ry. Co. was an action at law to recover past damages, and the rules of evidence applicable to such a case do not necessarily control the course of testimony in an action in equity where the defendants are asking the court to determine what in good conscience they should pay in order to avoid the injunction which the plaintiff shows himself to be entitled to.

It seems to us that in the consideration of these questions of evidence in cases of this description that, as far as the fixing of damages is concerned, it is not the request of the plaintiff that is being considered, but it is the prayer of the defendant that it might be allowed to avoid the injunction by the payment of a certain sum; and the question is, what in good conscience is the sum which these defendants should pay in order to avoid the operation of the injunction. Clearly upon such an investigation the harsh and rigid rules of evidence in actions at law canndt apply, and, even if they did, we think that the question under consideration would be allowed even in an action at law for the purpose of establishing what had been the injury sustained in the past by reason of the trespass which the defendants had committed.

The judgment should be affirmed, with costs.

Daniels and O’Brien, JJ., concur.  