
    Christian L. Oehler and Others, Respondents, v. The New York Elevated Railroad Company and The Manhattan Railway Company, Appellants.
    
      '■Equity—action for continued trespasses upon easements — a reservation, by a grantor, . of claims therefor, thereafter to accrue, is .ineffectual—not recoverable as an incident to the right in the grantee to restrain continued trespass. . .
    In an action in equity brought by Christian L. Oehler to recover fee and rental damages against the elevated railroads, of New York, it appeared that after the action was begun, and on the 28th day of April, 1892, Oehler, reserving causes of action for past, permanent and fee damages, conveyed the premises to a person named Emanuel, who on the 28th day of April, 1893, conveyed the ' premises to a party named McManus, who upon the 16th day of November, 1894, conveyed them to a party named Schoenfeld. McManus :and Schoenfeld . became parties to the action, but Emanuel did not.
    The trial court awarded damages to Oehler down to April 28, 1893.
    
      jHeld, that this was erroneous;
    That no causé of action for the loss of future rents, to accrue during Emanuel’s ownership, existed when the instrument of reservation was executed, and that the-attempted-reservation was ineffectual;
    That, even if Emanuel’s damages for the year during which he was owner had been effectually assigned to Oehler, they constituted simply a claim at law and were not recoverable in an equity action as incidental to Schoenfeld's right to restrain the continuance of the trespass. ■
    A claim originating in favor of Oehler; the original owner, distinguished from a claim assigned to him by his grantee, as regards its enforcement as an incident to the right of the owner of the title to restrain the continuance of: the trespass: 1
    Appeal by the defendants, The New York Elevated Railroad 'Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the .'county of New York on the 17th day of July, 1895, upon the decision of the court rendered after a trial at the New York Special Term, with notice of an intention to bring up for review on said1 ' appeal two ordérs made at the New York Special Term and entered in said clerk’s office respectively on the 15th day of September,, 1894, and the 2d .day of January, 1895, reviving and continuing the action.
    The judgment awards certain sums as damages to the property No. 1299 Third avenue in the city of New York, and enjoins the maintenance and operation of the defendants’ elevated railroad in front of said premises unless a certain other sum shall be paid to the plaintiff Schonfeld as a condition of avoiding the injunction.
    
      James G. McMurry and Julien T. Davies, for the appellants.
    
      W. G. Peckham, for the respondents.
   Barrett, J.:

Upon the 28th day of April, 1892, the plaintiff Oehler conveyed the premises in question to one Emanuel. Oehler was then the sole plaintiff in this action. Emanuel agreed that Oehler might reserve his cause of action for past, permanent and fee damages to the property caused by the defendants’ railroad. Emanuel conveyed the premises to the plaintiff McManus upon the 28th of April,. 1893, and upon the 16th of November, 1894, McManus conveyed them to the plaintiff Schonfeld. Emanuel was not made a party to the action. The trial court awarded damages to Oehler down to April 28,1893, the date of Emanuel’s deed to McManus. The theory of this award was, in substance, that the reservation above referred to amounted to an assignment to Oehler of Emanuel’s claim 'against the defendants for loss of rents during the latter’s ownership of the premises. This was erroneous. No cause of action for loss of future rents existed when the instrument of reservation was executed. Nor did the latter purport to assign any such cause of action. The instrument was simply an attempt to reserve Oehler’s claims and causes of action against the defendants,- notwithstanding the conveyance to Emanuel—an attempt which was clearly ineffectual, (Pegram v. N. Y. El. R. R. Co., 147 N. Y. 135, 146.)

But even if Emanuel’s damages for the year of liis ownership had been effectually assigned to Oehler, they were not recoverable in this equity action. Emanuel’s damages were certainly not incidental to Schonfeld’s right to restrain the continuance of the trespass. Schonfeld himself had no right to these damages directly or indirectly ; and he alone had the right to equitable relief.

Oehler, as the original plaintiff, is permitted herein to recover for the - loss of rentals during his period of ownership. This is as an incident to the equitable relief granted in the action, and proceeds upon the theory of settling all matters in controversy from the commencement, .of -the equity action, until its terminatibn. The cause of action in equity originated in Oehler, and is continued by his successor in interest. The doctrine which thus treats Oehler’s damages as an incident to the equitable relief granted generally in the action, does not, however, embrace outside claims to damages which never vested in Oehler as owner, but which may have been assigned to him by his successor in ownership. Emanuel’s claim to damages during his period of ownership was by his deed to. HcManus severed from the equitable right to restrain the continuance of the trespass, and was not again .united therewith.

' Possibly it might have been united .therewith .if assigned to Schonfeld.. It certainly could not be'if assigned to one who had parted with his title, and thereby with his right-to equitable relief. It thus became a simple claim for damages at law, assigned to one-who, apart from his position.as original plaintiff in the equity action,, possessed a similar claim at law and nothing more.

It follows that the judgment, so far as it ■ awards this, particular-item of damage to Oehler, was erroneous. .. It should be modified by: d educting therefrom- seventy-five dollars. .This is the only point in the case calling for .special "consideration. The judgment in all other respects was proper and should be- affirmed, without costs of this-appeal to. either party. .

• Van Brunt, P. J., Rumsey, Williams "and Patterson, JJ.; concurred. . .

. Jndgment modified as directed in opinion and affirmed as modified, without costs. '  