Farley v. Manhattan Ry. Co.

way Company, which was then in possession of and operating the elevated railroad’in Third avenue in front of said premises, from operating the railroad and to compel it to take down and remove the same, and as incidental relief to recover the damages caused thereby. Subsequent to the commencement of the action, and on or about the 1st day of April, 1903, the Interborough Rapid Transit Company leased the railroad from the Manhattan Company, and has ever since been in possession of and operating the same. The motion was resisted upon three grounds: First, laches; second, that another action, brought by the plaintiff against the Interborough Rapid Transit Company for the same relief, was pending; and, third, that the cause of action, if any, against the Interborough Company is separate and distinct from that against its lessor. According to the memorandum opinion of the learned justice who presided at Special Term, it appears that the order was denied upon the second and third grounds. Although the plaintiff was unable to show a stipulation establishing her right to have the lessee brought in as party defendant in this case, it appears that that course was adopted in many similar cases by stipulation, and that the plaintiff was justified in the belief that there would be no serious opposition thereto in this case, and very likely there would not have been but for the decision of the Court of Appeals in Hindley v. Manhattan R. Co., 185 N. Y. 335 , 78 N. E. 276 . The complaint in the other action by this plaintiff against the Interborough Company had not been served, and the inference from the affidavits is that that action was brought on account of a threatened construction of another track in front of plaintiff’s premises. The motion, therefore, could not have been properly denied either upon the theory of laches or on account of the pendency of the other action.

Under the decision of the Court of Appeals in Hindley v. Manhattan Railway Company, supra, a new action for the relief embraced in the original complaint herein might now be barred by the statute of limitations. Of course, the lessee is not liable for the damages caused by its lessor unless it has assumed and agreed to pay them. The original action, however, involved the right of the lessor to maintain and operate the railroad and the structure in the avenue in front of the plaintiff’s premises, and, in default of its paying the past and future damages of the plaintiff for the injury to her easements of light, air, and access, the plaintiff would be entitled to injunctive relief. It is evident that injunctive relief should not be granted after the defendant has parted with possession without bringing in the lessee as a party defendant, and, if the plaintiff could not obtain injunctive relief, she might under some of the decisions of the Court of Appeals be relegated to an action at law for her damages, and the statute of limitations may have run against such an action. It would seem, therefore, that both under the provisions of section 453 and section 733 of the Code of Civil Procedure the Interborough Company should be brought in as a party defendant. It is manifest that, if it be brought in as a party defendant, the proper procedure is to allow the plaintiff to serve a supplemental summons and complaint.

The order should therefore be reversed, with $10 costs and disbursements, and motion granted, with $10 costs. All concur.