Jacobson v. Brooklyn Elevated Railroad , 48 N.Y.S. 1072 ( 1898 )

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.