
    Arthur C. Jacobson and Minnie L. Huhn, as Executors and Trustees under the Last Will and Testament of Mary Jacobson, deceased, and Arthur C. Jacobson, individually, Plaintiffs, v. The Brooklyn Elevated Railroad Company, The Union Elevated Railroad Company, and Frederick Uhlmann, as Receiver of The Brooklyn Elevated Railroad Company, Defendants.
    (Supreme Court, Kings Special Term,
    January, 1898.)
    1. Elevated railroads — Improper joinder of causes of action.
    In a complaint in. equity for an injunction against the continuance and operation of an elevated railroad through a street, unless the damages caused thereby to certain abutting real property be • paid, the executors of the deceased owner of the abutting real property, and the present owner by devise from her united as plaintiffs, alleging that ' they were the owners of the said property, and asking that all of thé damages -from the beginning be assessed, and that the company be restrained from continuing and operating the road, unless such clam-i ages be paid. Held, that two causes of action, viz., that of the executors' and that of the owner were improperly united, but that objection was waived for not having been pleaded.
    
      2. Same — Jury trial — Waiver.
    Also, held, that the cause of action of the executors shown by the evidence was not equitable, but only a common-law action for damages; but that the defendant did not waive objection to its being tried in equity, and its right to a jury trial, by not pleading that there was an adequate remedy at law, for the reason that such cause of action ■did not appear .by the complaint, which, on the contrary, stated a good equitable cause of action only, against which such plea could not be interposed.
    3. Same — Dismissal of complaint.
    Also, held, that such common-law cause of action having appeared by the evidence, thé defendant was entitled to have the complaint as to it dismissed; but having instead asked that it be sent to the jury calendar, that course should be followed. ,
    . This is' an action to restrain the elevated railroad company de- ■ fendant from maintaining its structure and operating its railroad along" the street on which the real property of the plaintiff Jacobson abuts, unless it pay the damage done thereby to such property, the amount of which the court is asked to ascertain and fix herein. The complaint alleges that the plaintiffs own the property. But the proof is that the plaintiff Jacobson owns, it by devise from his mother, who died in September,- 1896, she having owned it from 1883. Her executors are joined with him as plaintiffs, and the complaint prays that all damages from the beginning, in loss of rents, .and also the permanent fee damage, be assessed, and that the company he restrained, as aforesaid, unless it be' paid. The road was built, and its operation begun, in 1888... The case, was brought on for trial as an equity cause at Special Term.
    Stephen M. Hoye, for plaintiffs.
    Alex. S. Lyman, for defendants.
   Gaynor, J.:

Counsel for the company moved before any witness had been sworn, and again at the close of the evidence, that the claim for damages for loss of rents which accrued prior to September 12, -1896, when the plaintiff Jacobson got title by devise from his mother, be sent to the jury calendar for trial, and that the court try in equity only the case of the said owner. Upon the death of the said mother her claim for damages passed to her executors. They have no interest in restraining the maintenance and operation of the road. Their claim is disconnected from the land, and is the basis for a common law action for damages only. On the other hand, the mother’s- devisee (the plaintiff Jacobson) has a separate claim for damages since he became owner, and also a right of action to restrain the future maintenance and operation of the road; but he has a standing in equity to have his damages found and to obtain relief by injunction at the same time (Cogswell v. R. R. Co., 103 N. Y. 10). Two distinct causes of action, viz., that of the present owner and that of the executors of the former owner, are therefore improperly united. But the defendant cannot take this objection for not having pleaded it (Code Oiv. Pro., secs. 498, 499). Nor has it pleaded that the executors have an adequate remedy at law. But it was not required to do this, for the complaint does not disclose their true position of having only a legal cause of action, but on the contrary it alleges that they with the other plaintiff (Jacobson) are the owners. It does not disclose that the plaintiff Jacobson became the sole owner in 1896, as devisee of their testator. The complaint thus states a good'suit in equity only. In such a case the defendant never had to plead that the plaintiffs, or any of them, had an adequate remedy at law, in, order to oust chancery of jurisdiction. On the contrary, when the proof showed that instead there was only a common law action, it was in time to take the objection to the jurisdiction of chancery then, and the suit had to be dismissed (Dalton v. Vanderveer, 31 Abb. N. C. 430; Wheelock v. Lee, 74 N. Y. 495). But that motion has not been made here in respect of the executors, and we therefore have the precise question to decide, viz., whether the action must be severed, and the claim of the executors sent to the jury calendar, for that was the motion made. I think it must be answered in the affirmative. The ■ defendant was entitled to a jury trial thereon, and did not waive it (Wheelock v. Lee, supra; Code Civ. Pro., sec. 1009). It did not plead a misjoinder, nor that the executors had an adequate remedy at law, (for that was not true of their cause of action as alleged, and therefore could not be pleaded of it); nor did it move to dismiss their cause of action upon the evidence, which revealed that they had none in equity; but nevertheless it asked in time for a jury trial. That it did this instead of asking for the dismissal which it was entitled to, can not be found fault with by the plaintiff executors; and I do not dismiss it only because the defendant asks instead that it be sent to the jury calendar.

From the time, the road was built to the present, I find that the value of the property has depreciated about $2,000, one-half of which is permanent damage Caused by the road; The plaintiff Jacobson has lost $60 in rent. Let the plaintiff Jacobson have ■judgment for a perpetual injunction unless this sum of $1,060 be paid.

Ordered accordingly.  