
    The City of New York, Plaintiff, v. Gilbert H. Montague, as Receiver of Fulton Street Railroad Company, and Others, Defendants, Impleaded with Adrian H. Joline and Douglas Robinson, as Receivers of the Metropolitan Street Railway Company, Respondents, and Alexander Smith Cochran and William F. Cochran, Jr., Surviving Trustees under the Will of William F. Cochran, Deceased, and Others, Appellants.
    (Appeal No. 1.)
    First Department,
    March 8, 1912.
    Nuisance — suit to abate nuisance — issues raised by defendants as between each other — when judgment for plaintiff should not be postponed.
    Where in a suit in equity brought by the city of New York against the receivers of two street railroad companies to abate a nuisance the bondholders of one of the companies have intervened and by answer demanded an adjudication with respect to which of the two companies should abate the nuisance and pay the expense thereof, in which issue the plaintiff has no interest, the court need not delay judgment for the plaintiff until the issue between the defendants is decided, but may leave that issue for subsequent determination.
    Appeal by the defendants, Alexander Smith Cochran and another, as surviving trustees, etc., and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of November, 1911, striking out part of the amended answers of the said defendants.
    
      Edgar J. Kohler [Alfred A. Gardner with him on the brief], for the appellants.
    
      
      Alfred Ely, Jr. [Arthur H. Masten, William M. Coleman and Frederick W. Kobbe with him on the brief], for the respondents.
    
      Terence Farley, for the plaintiff.
   Laughlin, J.:

This action was brought by the city against the receiver of the Fulton Street Eailroad Company, the receivers of the Metropolitan Street Railway Company and "other street railway companies to abate a nuisance. The appellants are bondholders of the Fulton Street Railroad Company. They were permitted to intervene in behalf of themselves and all other bondholders of said company similarly situated. Their first pleading was a demurrer, and their demurrer and a demurrer interposed by the receiver of the Fulton Street Railroad Company were argued together and were sustained at Special Term (68 Misc. Rep. 176), but were overruled on an appeal to this court. (City of New York v. Montague, 145 App. Div. 172.) Pursuant to leave given by this court, the appellants withdrew their demurrer and answered, and served their answer on the receivers of the Metropolitan Street Railway Company as well as on the plaintiff. The receivers of the Metropolitan Street Railway Company thereupon moved to strike out all of that part of the answer pleaded as a separate defense and counterclaim, thus leaving it consisting merely of admissions and denials.

The facts pleaded in the separate defense and counterclaim are evidently alleged for the purpose of obtaining an adjudication with respect to the primary duty as between the receivers of the Metropolitan Street Railway Company and the receiver of the Fulton Street Railroad Company to abate the nuisance and for the expense of abating it, it being contended in behalf of the appellants, on the facts alleged, that the primary duty rests upon the receivers of the Metropolitan Street Railway Company, who are operating the railroad tinder a track agreement between the Metropolitan Street Railway Company and the Fulton Street Railroad Company, which is the owner of the franchise. The agreement was in writing and bears date the 19th day of February, 1896, and is made part of and annexed to the answer. The city is indifferent to the controversy presented "by the motion to strike out the part of the pleading; but its counsel urges that the abatement of the nuisance should not be delayed by the controversy between the defendants.

It was suggested by this court on the appeal from the decision on the demurrers that the trial court may decide that the nuisance should be abated by reconstructing the railroad track, the condition of which it is alleged causes the nuisance, instead of removing it. The learned counsel for the respondents contend that the answer presents a new issue not germane to the cause of action alleged in the complaint, and that the city should not be delayed in abating the nuisance by a litigation between these defendants for a decision of the question as to which of them is primarily liable for the expense of abating the nuisance. The fight of the appellants to appear in the action is not, and cannot now be questioned. They are properly before the court as parties defendant. The suit being of an equitable nature, the court may determine, as between the receiver of the Fulton Street Railroad Company and the receivers of the Metropolitan Street Railway Company, which should be required to abate the nuisance, or, if both are required to abate it, so far as the city is concerned, upon which rests the primary duty and the obligation to reimburse the other, if such obligation should be found to exist. (See Code Civ. Proc. § 521; City of New York v. U. S. Trust Co., 116 App. Div. 349; Metropolitan Trust Co. v. Tonawanda, etc., R. R. Co., 43 Hun, 521; affd., 106 N. Y. 673; Kenney v. Apgar, 93 id. 539.) The decision of these questions need not be permitted and should not be permitted to materially delay the abatement of the nuisance if one be found to exist, for the court is given authority to direct judgment for the relief to which the plaintiff may be entitled in advance of the trial and decision of the issues between the defendants. (Code Civ. Proc. § 521.) The pleading was, therefore, proper and should not have been stricken out.

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Clarke, McLaughlin, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  