Moss v. N. Y. Elevated Railroad — 27 Abb. N. Cas. 318

Majority

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MOSS v. N. Y. ELEVATED RAILROAD CO.

N. Y. Superior Court, Special Term;

October, 1891.

Headnote

1. Notice of pendency of action.] In a suit to enjoin the running of an elevated railway in front of plaintiffs’ premises and for damages, the judgment granted a perpetual injunction with a provision for defendants tendering a specified sum for the conveyance of the easement within a given time, and the execution by plaintiff upon such tender of a proper release thereof. On motion to set aside the judgment on the ground of newly discovered evidence that plaintiff after trial and before judgment conveyed the fee of the premises and that his grantees had since refused to execute the required release,—Held, that the plaintiffs’ grantees were as much bound by the judgment as though they had been parties to the action, the pendency of the action being in the nature of a lis peíidens. A release by plaintiffs in accordance with the judgment would, therefore, be effectual notwithstanding the prior conveyance.^[1]

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2. Abatement.] A suit to enjoin the running of an elevated railway in front of plaintiffs’ premises and for damages will not abate because of plaintiffs’ conveyance of the premises during the pendency of the action,

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Motion to vacate judgment.

.The action was brought by David Moss and Morris Goldstein against the N. Y. Elevated Railway Company and the Manhattan Railway Company, to restrain

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defendants from operating their road in front of plaintiff’s premises and for damages.

Judgment was awarded plaintiffs for past damages,, and a perpetual injunction granted, which should be avoided on defendants tendering a specified sum for the conveyance of the easement within a given time and the execution by plaintiff upon such tender of a proper release.

The motion to vacate was made upon the ground that unknown to defendants, plaintiffs had conveyed the fee of the premises after trial and before judgment, and that the grantees refused to execute the release mentioned in the judgment.

The further facts are fully stated in the opinion»

Davies, Short and Townsend, for the motion.

Leo C. Dessar, opposed.

The suit, which is in equity, to enjoio. the running of the defendants’ road and for damages, was tried November, 1889, and decided November 5,.. 1890, judgment being awarded for $1,542 past damages,, with a provision that if $3;ooo were paid, a conveyance of the easement should be executed and delivered to the.defendants. They now prove that after the trial, and! before judgment, to wit, on August 27, 1890, the-plaintiffs conveyed the fee of the property to Denis. Shea and others, and that the grantees refuse to-execute the required release. The defendants on this, evidence, said to be newly discovered, move to set. aside the judgment.

The action did not abate by the change of interest (Code, sec. 756), and the grantees are as much' bound by the judgment as though they had been parties, the pendency of the action being in the nature of a lis pendens. The past damages certainly belong to the™

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plaintiffs, and there should be no new trial as to those. The $3,000 is to be paid only on the execution and tender of a release, and whether this comes from the plaintiffs or their grantees is of no consequence, so long as it accomplishes its purpose. The grantees can maintain no other action while the judgment herein is of record, as it is a bar- to any such proceeding. This being so, the decree needs no modification, and the defendants require no relief. How the plaintiffs arrange with the grantees or obtain the requisite release is of no consequence to the defendants, so long as they get a proper conveyance, duly executed, in a form sufficient to pass title to the easement.

Motion denied' without costs.