
    John R. Domschke, Resp’t, v. Metropolitan Elevated Railway Company et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 15, 1893.)
    
    1. Appeal—First instance.
    Failure to object to evidence when oSered, on the ground that it is not within the pleadings, is a waiver of the objection.
    
      % Damages—Flevated railway.
    An owner, whose premises abuts upon an elevated railway, if he convesy such premises pendente lite, can recover for past damages.
    Appeal from a judgment entered upon the report of a referee in favor of plaintiff.
    From May 1, 1884, to January 16, 1893, the plaintiff was the owner in fee of Nos. 1116 and 1168 Second avenue, between Sixty-first and Sixty-second streets. In 1879, the Metropolitan Elevated Bailway Company began, and in 1880 completed, an elevated railroad in said avenue, which the Manhattan Bailway Company has, since its completion, operated under a lease from the first-mentioned corporation. April 20, 1890, this action was begun, to recover the damages—alleged to be $3,000—caused to the premises by the construction and operation of the road, and for an injunction restraining its future operation. The referee awarded $611.49 as damages to the property, arising from the operation of the road between the date when the plaintiff acquired title and January 26, 1893, the date of the conclusion of the trial of this action, and directed that a judgment be entered therefor, and also that the defendants be restrainéd from further operating the road unless they, within 90 days after the notice of the entry of the judgment, pay to the plaintiff $1,000, with interest from January 26, 1892, for the right to maintain and operate, in the future, the road, provided the plaintiff, and all persons interested in the premises, execute to the defendants a grant of the right to maintain and operate the road. May 3, 1893, a judgment was rendered on this report, from which the defendants have appealed.
    
      Howard Me William, for app’lts; Henry 6?. Atwater, for resp’t.
   Follett, J.

On the 16th of January, 1893, and before the ease was decided, the plaintiff conveyed the fee of the premises to Max Frankenheim, by a warranty deed containing the iollowing clause:

“ The party of the first part, however, reserves any right of action which he has, or may have, against the elevated railroad, by reason of its structure in front of the above described premises, up to the date hereof; but this shall not be construed as in any manner giving the party of the first part the right to convey any easement in or to said premises.”

February 7, 1893, the defendants learned of the conveyance, and on the 9th of that month-they moved that the case be opened, and that they have leave to introduce the deed in evidence. The referee granted the motion, “with the limitation, however, that said deed shall be admitted as evidence only so far as it tends to show the value of said premises at the date of its delivery, and for no other purpose, and with no other effect, whatsoever. Plaintiff may introduce evidence in explanation or rebuttal.” Thereupon the deed was received in evidence, subject to said limitation, and the defendants “ excepted to the refusal to admit the deed as evidence of the conveyance of title from the plaintiff.”

The plaintiff insists that the deed was not admissible in evidence to defeat his demand for injunctive relief, because the conveyance was not set up in a supplemental answer. A perfect answer to this position is that no such objection was taken when the deed was offered in evidence. Corser v. Russell, 20 Abb. N. C., 316; 9 St. Rep., 56. In Gray v. Barton, 55 N. Y., 68, it was proved that, the plaintiff had gived to the defendant the demand on which the action was brought. On appeal, the point was raised that this fact was not pleaded. The court said:

“ The counsel for the respondent insists that the defendant cannot avail himself of the latter, for the reason that it was not set up in the answer. It might have been obviated by procuring an amendment, if necessary. Omitting to make it upon trial was a waiver.”

A memorandum of the decision of the supreme court, Gray v. Barton, 1 Alb. Law J., 122, shows that the gift was made before the action was begun. But the language quoted expresses the general rule that in case a relevant fact is offered to be proved, which should have been pleaded, the party against whom it is offered waives this point, unless the admissibility of the fact is objected to on the ground that it is not pleaded. Besides, this conveyance was the voluntary act of the plaintiff, and the rule requiring amendments in such cases is not as stringent as when the fact has occurred without the agency of the party against whom it is offered.

The plaintiff having parted with his title, and all right to the damages, to the fee, he was not entitled to injunctive relief In his conveyance it is expressly provided that he has no right to convey the street easements, and a deed or release from him would afford no protection to the defendants against the claim of his grantee, or of his successors in interest. The defendants insist that this being an equitable action, and the plaintiff having voluntarily divested himself of all right to equitable relief, the action should have been dismissed, and that the referee erred in awarding past damages. This precise question was decided against the defendants in Van Allen v. N. Y. El. Railroad Co., 3 Misc. Rep., 53; 51 St. Rep., 767; and substantially the same question was decided in Renwick v. N. Y. El. Railroad Co., 15 N. Y. Supp., 149; 39 St. Rep., 381. In this state legal and equitable relief is administered by the same court, and, when the action was begun, the plaintiff had a good cause of action for equitable relief; and the fact that since he has ceased to be entitled to such relief is not a sufficient ground for dismissing the action, and it should be retained for the purpose of assessing such damages as he is entitled to. We find no erroneous rulings in the reception or rejection of evidence, or in the findings, or refusals to find, relating to the question of past damages, and we think the judgment should be modified by striking therefrom the second and third divisions thereof, and, as so modified, affirmed, with costs in this court to the appellants, and against the respondent.

All concur.  