
    THE SECOND AVENUE RAILROAD COMPANY, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.
    
      Complaint, order for amendment of, what objections thereto are not available on appeal.—Instance of such order not interfering with the constitutional right of trial by jury.
    
    The objection that the order permitting the plaintiff to amend the complaint required the defendants to answer the amended complaint, is not available on appeal, it not being claimed that the order prevented defendants from demurring, or that but for the order they would have demurred.
    The objection that the order required the defendants to answer within twenty days after service of the amended complaint, is not available on appeal.
    The objection that the order directed the issue to remain as of November 15, 1888, is not available on appeal.
    The proper and sufficient remedy as to the above matters, if defendants were aggrieved, was to move for a resettlement.
    Order for amendment of complaint not depriving defendant of his constitutional right of trial by jury, instance of.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    
      Decided May 5, 1890.
    . Appeal from order allowing an amendment to the complaint.
    The complaint alleged that plaintiff is and was a corporation duly organized ; that Second Avenue between 123d and 129th streets in the city of New York, is a public highway laid out and opened under chapter 86 of the Laws of 1813, entitled “ an act to reduce several laws relating particularly to the city of New York into one act,” passed April 9, 1813 ; that upon-the opening of said avenue the corporation of the city of New York became seized of the fee and certain trusts in the complaint set forth, among others, that the avenue should forever be appropriated and remain open in like manner as other public streets and avenues in said city then were, and of right ought then to have been appropriated and kept open.
    The complaint then alleged, “ That at the time of the passage of said act of 1813, none of .the streets or avenues in said city were appropriated or kept open for the use or purposes of a railroad, either surface, underground or elevated. That such proceedings created a valid trust in the corporation of said city, which precluded it from authorizing any other use of the land acquired for' such portion of the said second avenue than that described in said act of 1813. That the said city of New York in effect contracted with all persons who owned land on said avenue, that such abutting owners and their successors might erect buildings upon their lots and open windows overlooking said street, and receive light for their said buildings from said street as a perpetual easement over said street.
    “ That no use of said street should be permitted ■ which should render the air in said street noxious or unwholesome, or which should obstruct the entrance to buildings erected or to be erected, or which should disturb and annoy the occupants of said buildings by unusual noise, jars, or in any other manner whatever.
    “ That said avenue, until taken possession of by the defendants, as hereinafter set forth, was only used for the ordinary purposes of a street or avenue, that is to say, for the passage of man and beast and of "Vehicles drawn or. propelled upon the surface of the same, and for the free admission and use of air and light and access to houses and buildings erected and to be erected upon the boundary lines of said street.
    “ That said use of light, air and access to buildings, is a necessary use indispensable to the enjoyment and ownership of the said premises, and is an easement legally appurtenant to said premises, and is property.”
    The complaint then alleged that in 1871, the plaintiff became the owner in fee simple of certain premises situate on Second avenue, between 126th and 127th streets, (particularly described them) and of the buildings thereon, and had ever since been and then was such owner thereof ; that before the acts of the defendants thereinafter set forth said property was of great value; that in consequence of such acts of defendants the use, enjoyment and value of said property was greatly damaged and reduced, and the plaintiff suffered great injury and loss. It then alleged the incorporation of the defendant “ The Metropolitan Elevated Railway Company.” It then alleged that in 1880 the said Railway Company took possession of said Second avenue, between said streets, and erected thereon a structure of iron and wood. It then gave a particular description of the structure and the use thereof made by the defendant. It then alleged that since 1880 the railroad has been in possession of and operated by the defendant The Manhattan Railway Company and lessee and agent of the Metropolitan Elevated Railway Company. It then alleged the incorporation of the Manhattan Railway Company. It then proceeded as follows:
    That the defendants by constructing and maintaining said structure in such parts of said Second avenue, deprived the said avenue of the purifying action of the sun in drying the surface, and prevented the former and usual circulation of air, and made the said street damp, dark and unwholesome. Trains of cars were and are run by defendants upon this structure at intervals of a few minutes all day and until midnight. That this structure and these trains deprived and now deprive plaintiff’s premises of the uninterrupted use of and access by the light and air in said avenue and opposite plaintiff’s said premises, so that this plaintiff could not and cannot have the former or customary use of said light and air in their said premises, but are deprived thereof by the defendants. That the* engines drawing these trains emit into said street and into plaintiff’s said premises and buildings offensive and noxious stenches and cinders.
    That said columns obstruct plaintiff’s free use of said street.
    That trains in passing said buildings emit sparks, steam, soot and ashes, and water into the street and plaintiff’s said premises, and cause a loud and unpleasant noise and disturbance during their passage past plaintiff’s said premises.
    That by the construction and operation of said Elevated Steam Railway as hereinbefore set forth, the said defendants deprive the plaintiff of the free and uninterrupted or unimpaired enjoyment of its rights and property, and the lawful use of its said premises, and greatly reduced their value.
    
    The plaintiff, further says that each and every of the aforesaid injurious acts of the defendants have been done wrongfully, and against the will and consent of the plaintiff. That for the aforesaid wrongs aad injuries which the defendants inflicted upon the plaintiff and the said premises, and upon the rights and interests and easements as above set forth, defendants never made or offered plaintiff any compensation, nor did defendants, by recourse to the right.of eminent domain accorded to them by law, ever take any steps to compensate plaintiff for any of said wrongs and injuries, but on the contrary defendants inflicted said wrongs and injuries, and imposed said burdens on the plaintiff and the said property without compensation or indemnity during the whole period from, in or about the month of March, 1880, when the said structure was completed, till the present time.
    That but for the said unlawful acts of defendants the plaintiff’s said property would be of much greater value, and the rental value thereof would be much greater, and in cofisequence of the continuance of said unlawful acts, the market value and rental value of said premises have been greatly diminished.
    
    Wherefore plaintiff prays judgment that unless the defendants shall pay to this plaintiff the amount of damages sustained by them through their said unlawful acts up to the time this action was commenced, and which damages in rental depreciation amount to the sum of thirty thousand dollars, and unless they shall also pay to the plaintiff within sixty days after the tender by plaintiff to them of a conveyance of the easements of light, air and access lawfully appurtant to said premises, and now abridged by defendants,- the further sum of forty-five thousand dollars, that an injunction may issue restraining said defendants, and that they be enjoined and restrained from operating and maintaining said struct-ures and compelling them to remove the said railroad structure and station from in front of plaintiff’s said premises and for such" other and further relief as to the court may seem fit, together with the costs of this action.
    Issue was joined November 15," 1888, by defendants’ answer. The issue thus joined came on to be tried on the 21st and 22nd days of January, 1890. at an equity term as an equity cause before Sedgwick, Ch. J., without a jury. On the trial defendants’ counsel moved to strike the cause of action from the calendar, on the ground that it sets forth no equitable cause of action.
    
      Thereupon plaintiff’s counsel moved to amend the complaint so as to put in the complaint allegations that the defendants intended and threatened to continue the structure and the operation of the road through the term of its charter ; and asked the court to allow an adjournment in order to apply at the special term for leave to amend. Defendants’ counsel asked that the cause be marked off the term. The court thereupon ruled: “ In my judgment the defendants, if an amendment is allowed, will have a right to claim a trial upon the issue as of the time when made by the amendment. I have no power to put this over in contemplation of a new issue being made, for if that new issue be made it will take its place on the calendar of that date ; ” and granted the motion to put the cause off the term. Thereafter plaintiff moved at a special term held at Chambers for the hearing of motions for leave to amend the complaint by inserting therein after the words “ and greatly reduced their value ” above italicized the allegation, “ That the said structure and the running of trains thereon and the other acts of defendants hereinbefore alleged are of a permanent, lasting and continuous nature and will be permanent, lasting and continuous,” and by inserting after the words “ greatly diminished ” above italicized, the allegation “ That plaintiff is obliged to seek the equitable assistance and interference of this court in order to prevent a multiplicity of actions.”
    The motion was granted and an order dated February 6,1890, entered upon the granting of it, which is sufficiently set forth in the opinion. Defendants appealed to the general term.
    
      Davies & Rap alio, attorneys, and T. Frelinghuysen C. Demarest of counsel, for appellants, argued:—
    I. The order appealed from should be reversed, because it imposes on the defendants, who were wholly without fault, terms on granting relief to the plaintiff against the results of a non-observance of the tules of pleading. (1.) The order appealed from provides : “ And it is further ordered that, within twenty days after the service of a copy of the complaint, amended as aforesaid, upon the attorney for the defendants, the defendants shall serve their amended answer upon the attorney for the plaintiff.” This was error : “ The only pleading, on the part of the defendants is either a demurrer or an answer” (Code Civ. Pro., § 487). This statute gives the defendant an option, of which a court cannot deprive him, where he asks no favor, and has been guilty of no laches. Fink v. Manhattan R. Co., N. Y Com. Pleas. Gen. Term, Feby., 1890, 8 N. Y. Supplement, 327 ; Union Bank v. Mott, 19 How. 267. (2). The order appealed from provides ; “ And it is further ordered, * * * that the issue herein shall remain as of the 15th day of November, 1888.” This was error : (a.) “ An agreement to forbear for a time, proceedings at law or in equity, to enforce a well-founded claim, is a valid consideration for a promise” (Parsons on Contracts, 7 th ed., 470, and cases cited); and (b.) It is a familiar condition imposed by the courts on opening a defendant’s default in pleading, or on granting to a defendant an extension of time to plead to provide that the issue shall remain as of the date which it would have had in case the default had not occurred or the extension been granted. It follows that (c.) To so antedate an issue, as against an unoffending defendant’s title to demand the observance of the statutory prescription as to the time of his arraignment, is to deprive him, without reason, of a right, without possessing which he could not waive or forfeit it in the cases of default or extension supposed ; and of which right, if existence were not predicable, forbearance could not be purchased by the promise referred to in the last quotation.
    II. The order appealed from should be reversed, because, in accomplishing its only intended object, the substitution of an equitable, for a legal, cause of action, it violates the defendants’ constitutional right to a jury trial of the issue offered by plaintiff and accepted by defendants. Before the amendment allowed by the order appealed from, the complaint set forth a claim for money damages—a legal as distinguished from an equitable cause of action—presenting an issue for trial by a jury, as distinguished from a trial by the court. In the affidavit of plaintiff’s attorney, upon which the order to show cause was based, the affiant pointedly calls the attention of the court to the fact “that, by the ninth section of defendants’ answer herein, it is admitted that said structure is of a permanent and lasting nature. And it is the fact, that the defendants’ answer to the first-named complaint, i. e., to the complaint as it existed before the order appealed from was made, alleged “that the said railway was constructed according to law, and with the greatest care and skill, and that the structure, maintenance and operation thereof are permanent.” Here, then, we find both parties insisting on the permanency of the road. The Lcthr case makes the issue, in such a conjuncture, triable by jury, as a question of damages. 104 N. Y. 294. The. case at bar is thus brought distinctly within the doctrine announced in Davison v. Associates of the Jersey Company 71 N. Y. 333.
    III. The order appealed from should be reversed, because its result is a defective pleading. (1.) “ A court has not the discretion to allow a defective pleading to be served as an amendment of the earlier pleading” Pracht v. Ritter, 48 N. Y. Super Ct. 509, 510. (2.) The complaint, as permitted to be amended by the order ,appealed from, is defective, because (a.) The allegation,—“ that the plaintiff is obliged to seek the equitable assistance and interference of this court in order to prevent a multiplicity of actions,” is sham, on its face. A “ multiplicity of actions” cannot arise, and therefore cannot be prevented between two persons only. Willard's Eq. Jurispr., Potter's ed., 326 ; citing Cowper v. Clark, 3 P. Wms. 157, and Alexander v. Pendleton, 8 Cranch, 468 ; 1 Maddock’s Chancery, 1st Am. ed., 140. If, however, it is assumed that the pleader was trying to allege the danger of a necessity of suing repeatedly to collect damages, then (b.) The two amendments are inconsistent, because, as has been seen, the quality of “ permanency,” by the Lahr decision, makes the damage recoverable once for all by the verdict of a jury. That inconsistent amendments of a complaint will not be allowed, see Evangel L. Church v. Fingar, 11 N. Y. Week. Dig. 460 ; Scheier v. Tyrrell, 23 lb. 476.
    IV. The order appealed from should be reversed, because it transcends the broadest limits of the field wherein the courts have exercised their regulative power over pleadings. (1.) Although it is decided that the statute is not the sole source of the power to allow amendments, it is believed that the clause of Code Civ. Pro., § 723,—which allows of an amendment “ by inserting an allegation material to the case,”—suggests a degree of liberality which a court can never find it needful or suitable to exceed. (2.) The allegations inserted in the complaint, in the action at bar, were not material to the ease. Plaintiff had stated a good case. All that was requisite was to properly notice it for trial.
    V. The order appealed from is appealable to the general term. If deemed discretionary, defendants are entitled to the discretion of the general term. People v. N. Y. C. R. R. Co., 29 N. Y. 418 ; Howell v. Mills, 53 lb. 322 ; Martin v. Windsor Hotel Co., 70 lb. 101 ; Hand v. Burrows, 15 Hun, 483.
    
      Augustus S. Hutchins, attorney and of counsel, for. respondent, argued:—
    
      I. The order of February 6, 1890, allowing certain amendments to the complaint herein is a proper order and should not be disturbed. § 723 of the Code ; Dennis v. Coman, 61 N. Y. 642 ; Van Duzen v. Howe, 21 lb. 531 ; Fox v. Hunt, 8 How. 12 ; Woolsey v. Trustees, etc., 2 Keyes, 603.
    II. The order appealed from being a discretionary one is not subject to review on appeal except it be shown that such discretion was abused. No such claim can be successfully made in the case at bar. Olendorf v. Cook, 1 Lansing, 37 ; Gould v. Rumsey, 21 How. 97 ; McQueen v. Babcock, 13 Abbott, 268 ; Ford v. David, 1 Bos. 569 ; Saltus v. Genim 19 How. 233 ; Train v. Barger, 24 Barb. 614 ; Phincle v. Vaughan, 12 lb. 215 ; Iron Works v. Smith, 4 Duer, 362.
   By the Court.—O’Gorman, J.

The defendants appeal from an order of the special term of this court, of which the following is a copy :—

“ Upon reading and filing the affidavit of Augustus S. Hutchins, plaintiffs attorney herein, verified January 29, 1890, and a proposed form of an amended complaint thereto annexed, and the order to show cause granted on said affidavit, returnable February 1, 1890, with proof of due service thereof, and the affidavit of Theodore F. C. Demarest, of counsel for defendants, in opposition' to the motion made by said order to show cause, and the transcript of the minutes of the official stenographer of this court of the proceedings had herein at the equity term of this court, on January 21 and 22, 1890, submitted on the hearing of the motion, and upon all the pleadings and other proceedings herein, and after hearing Agustus S. Hutchins for the motion made by said order to show cause, and Theodore F. C. Demarest in opposition thereto, it is

“ Ordered, that the complaint herein may be amended by inserting therein, after the words ‘ greatly reduced their value,’ in the eighteenth folio, the following allegation : 1 That the said structure, and the running of trains thereon, and the other acts of defendants hereinbefore alleged, are of a permanent, lasting and continuous nature, and will be permanent, lasting and continuous ’ ; and also by inserting in the said complaint after the words 1 greatly diminished’, in the twentieth folio, the following allegation : 1 That the plaintiff is obliged to seek the equitable assistance and interference of this court in order to prevent a multiplicity of actions.’

“ And it is further ordered that within twenty days after the service of a copy of the complaint, amended as aforesaid, upon the attorney for the defendants, the defendants shall serve their amended answer upon the attorney for the plaintiff, and that the issue herein shall remain as of the 15th day of November, .1888.

“ This order is made conditional upon the payment of twenty dollars by the plaintiff to the defendants.

“ And it is further ordered that- the order permitting an amendment of the complaint heretofore entered in this cause, on the first day of February 1890, be revoked ; the foregoing provisions of this order being in lieu and stead of the last-mentioned order.”

The chief grounds of the defendants’ appeal are— That the order imposes the terms on the defendants that they shall serve their amended answer on the attorney for the plaintiff, within twenty days after service on them of a copy of the plaintiff’s amended complaint.

Defendants did, in fact, serve such amended answer, but under protest. They do not claim that this order prevented them from demurring to the amended complaint, or that but for the order they would have demurred. The defendants also claim that they were prejudiced by the requirement in the order that they should answer within twenty days. That is the statutory time within which an answer must be served after service of summons. Code Civil Procedure, §§ 418, 422. The court at special term had power to make the order appealed from and it was matter of discretion. Code, § 723. The defendants, if aggrieved by the order, could have moved for resettlement, and called the attention of the court to such substantial detriment, if any, which they sustained by reason of the order. That would have been the proper and sufficient remedy. Code Civil Procedure, §§ 723, 724. The other alleged grounds of appeal are without merit. The defendants’ constitutional right to trial by jury, if such right appears on the pleadings to exist, cannot be denied, and defendants are not deprived of the exercise of that right by the order appealed from. It is a right that can be asserted at any time, and before any tribunal, unless waived. Code Civil Procedure, §§ 968, 1009.

The order appealed from is affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.  