
    Edward Mitchell et al., Resp’ts, v. The Metropolitan Elevated R. R. Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 9, 1890.)
    Trespass—Elevated railroads—'Judgment in eavor op parties subsequently DECIDED TO HAVE NO TITLE NO BAR TO ACTION POR DAMAGES BY SUBSEQUENT OWNER.
    The plaintiff in an action against an elevated railroad having died, it was revived by liis executors and a judgment for permanent injury recovered. Subsequently, in an action for partition of said premises, it was decreed that the will was not valid and the premises in question were sold to plaintiff. Held, that it having been decided that the executors had no title whatever to the real estate," the recovery of such judgment and th' payment thereof to them in no way affected such real estate and conferred no rights to the easements to defendants which would bar an action' by plaintiff for damages. o
    Appeal from judgment after trial at special term.
    
      Brainerd Tolies, for app’lts; Mitchell & Mitchell, for resp’ts.
   Van Brunt, P. J.

The plaintiffs commenced this action in May, 1887, for the purpose of procuring 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 Railway 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 bis 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 instructitin it appears was excepted to upon the part of the Metropolitan Elevated Railroad Co. 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 seized, and by the judgment entered it was adjudged and decreed that the said will was riot 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, amongst 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. The Metropolitan Elevated Railway Company, they 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 pi’otected by his possession, as that is notice to dhe world that he has some claim and puts the purchaser of that property upon inquiry, and he 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 pbtained by the owner of the premises against them for permanent damages, and precluding him and all persons claiming under him from maintaining another action, therefore 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 rights 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. Metropolitan El. R. Co., 112 N. Y., 186; 20 N. Y. State Rep., 479, 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 defendants, 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 Schnarr 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 Schnarr 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.

Daniels and Brady, JJ., concur.  