
    Guillaume Logeling, Respondent, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants.
    
      Elevated railroads — an objection to an amendment in 1895 of the complaint in an action at lam begun in 1880 — waived by the receipt of the costs imposed by the order authorizing the amendment — Statxite of Limitations — dependent solely on the date of service of the suxnmons.
    
    In an action at law against the elevated railroad companies of the city of New York, begun in 1880 by an abutting owner, the complaint alleged that the defendants wrongfully and illegally did certain acts in the construction of their road in front of the plaintiff’s premises which greatly damaged the plaintiff, and that he was deprived of the easements of light and air.
    In 1895 the plaintiff made a motion to amend his complaint, which was granted upon the payment of certain costs, which the defendants received, and upon an appeal subsequently taken from the judgment, with notice of an intention to review such order, the defendants urged that the order allowing the amendment to the complaint was unauthorized, and also that they had a right to plead the Statute of Limitations as against the claim set up in the amended complaint.
    
      Held, that as the defendants accepted the costs, the payment of which was made a condition of the granting of the order allowing the amendment, they had waived their right to a review of the order;
    That a new action was not commenced by the service of the amended complaint in 1895, inasmuch as that complaint was based substantially upon the same wrong's which were counted upon in the original complaint;
    That all questions relative to the Statute of Limitations must he referred to the commencement of the action by the service of the summons in 1880;
    That the provisions of section 415 of the Code of Civil Procedure, that the period of limitation “must he computed from the time of the accruing of the right to relief by action * * * to the time when the claim to that relief is actually interposed * * * in the particular action,” did not alter the rule, as the claim to such relief was interposed when the summons was served;
    That the rule that a distinctly new cause of action barred by the Statute of Limitations could not be properly injected into an existing action by an amendment under an order of the court, did not apply to the case at bar.
    In such case the remedy of the party is by a direct appeal from the order, and, if the order is allowed to stand, the amended complaint becomes the only complaint in the action.
    Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of June, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also front an order entered in said clerk’s office on the 21st day of June, 1895, denying the defendants’ motion for a new trial made upon the minutes, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 3d day of April, 1895, allowing the plaintiff to serve an amended complaint.
    
      Edward B. Thomas, for the appellants.
    
      Walter M. Rosebault, for the respondent.
   Barrett, J.:

This action differs from the actions usually brought by abutting owners against the elevated railroad companies in that it is an ordinary action at law for damages alleged to have been sustained by the plaintiff by reason of the construction and operation of the defendants’ railroad in front of his premises, No. 19 Bowery, in this city.

The defendants’ contention, that the damages awarded by the jury were greater than the proofs warranted, is wholly without merit. We entirely agree with the plaintiff that the damages were inadequate, and if he had appealed we would not have hesitated to grant him a new trial upon that ground. But the plaintiff has not appealed, and we cannot listen to his suggestion that a new trial be awarded to the appellants upon any other ground than the particular one which goes to the root of the recovery. The respondent does not assent to a reversal generally. He desires a reversal coupled with an adjudication which necessitates an affirmance. This, of course, is impossible. We must, therefore, consider the point presented by the appellants as to which the respondent joins issue upon the assignment of error.

The point is a very simple one, and its disposition is entirely free from difficulty. The action was begun in 1880, and in his original complaint the plaintiff alleged that the defendants wrongfully, illegally and negligently did certain acts in the construction of their road in front of the plaintiff’s premises which greatly damaged him. A few months later the plaintiff amended his complaint in some particulars, but still alleged that he and his lodgers and tenants were deprived by the defendants’ structure of the light, air and peace which theretofore they had enjoyed. In the year 1895 the plaintiff moved for leave to again amend his complaint, and that motion was granted upon payment of eighty-five dollars costs. These costs were paid and the amended complaint served. The defendants now claim, first, that the order allowing such amendment was unauthorized or improvident, and, second, that they have a right to plead the Statute of Limitations as against the claim set-up in the amended complaint. As to the first point, we think that if the defendants desired to review the order, they should have appealed therefrom. By accepting the terms upon which the amendment was allowed, they waived their right of review. It is well settled that a party who accepts any benefit under a judgment or order, waives his right to appeal therefrom. If, therefore, the defendants had appealed directly from the order in question, their appeal would .have been dismissed.

As to the second point, we think it clear that all questions relating to the Statute of Limitations must be referred to the commencement of the action by the service of the summons. The defendants claim that a new action was commenced by the service of the amended complaint in 1895. We have examined the pleadings, and we are satisfied that, although the original and the first amended complaints were inartistically drawn, they are susceptible of the construction for which the plaintiff now contends. The trespass element and the deprivation of the easements of light and air, can be gathered from the entire phraseology. These complaints do not so clearly and emphatically affirm the existence of the defendants’ rights, and charge mere negligence in the exercise of those rights, as the defendants would have us conclude. The amendment which was allowed in 1895 was in the interests of justice. It cannot be said to have authorized a distinctly different and independent cause of action from that which the plaintiff somewhat crudely asserted in 1880. The substance of it was the same wrong.

By the amendment that wrong was crystallized in clearer language and put in more scientific form. But it was, in effect, the same cause of action resulting from the same wrongful acts The service of the amended complaint, however it might vary from the original, was not the commencement of a new action. It was still the complaint in the action instituted by the service of the summons in 1880. There is nothing in section 415 of the Code of Civil Procedure which warrants .a departure from this rule. It is true that it is there provided that the period of limitation must be computed from the time of the accruing- of the right to relief by action * * * to the time when the claim to that relief is actually interposed- * * * in the particular action.” But the claim to such relief is always interposed when the summons is served. If the defendants’ construction of this section be correct, the service of a summons within the prescribed period would never save a cause of action from being barred by the statute. It would always be essential to serve even the original complaint within the time limited. We agree with the appellants that a distinctly new cause of action cannot properly be injected into an existing action by amendment under a judicial order, where such new cause of action has been barred. That would be to allow, not an amendment, but a new action under the guise of an amendment, and thus to deprive a party of his plea of the statute. But even then the party’s remedy is by direct appeal from the order. If the order stands, the amended complaint becomes the complaint in the action, and the only complaint. It follows the summons quite the same as though it had been served with it, or as though it were the only complaint served thereafter in response to the defendants’ demand for a copy thereof.

The ruling of the court at Special Term was correct with regard to these questions.

The only other question calling for notice is as to the admission of conversations between the plaintiff and his former tenants. These conversations, whether admissible or not, were clearly harmless. They related to so remote a period as to have but little if any bearing upon the questions at issue. The fact that these tenants refused to renew their leases in the spring of 1878, and so refused upon account of the elevated railroad, was really unimportant. The material fact was as to the rents subsequently received. It may be added that the plaintiff’s testimony on the point in question was neutralized by his son’s subsequent statement that these tenants told him that they were going to dissolve their partnership because the business no longer paid them. The fact that the defendants were not prejudiced by the plaintiff’s unimportant testimony as to the cause of the removal of these tenants, is amply demonstrated by the inadequacy of the verdict.

The judgment should be affirmed, with costs.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  