Senft v. Manhattan Railroad — 14 N.Y.S. 876

Majority

p. 876

Senft v. Manhattan R. Co. et al.

(Superior Court of New York City, General Term.

June 10, 1891.)

Headnote

Appeal—Objections not Raised Below—New Cause op Action.

■ Pending an action to enjoin the maintenance of an elevated railroad in front of plaintiff’s premises, plaintiff conveyed the premises to one M. It was then ordered that M. he substituted as plaintiff, and that so much of the cause of action as was

p. 877

for equitable relief be continued in the name of the substituted plaintiff, (M.,) on condition that within 40 days M. serve a supplemental complaint setting up such equitable cause of action. ■ The supplemental complaint did not set up the equitable-cause of action, but alleged an original cause of action in favor of M. that had accrued on the conveyance of the property to her. The issues raised by defendants’ answer to the supplemental complaint were tried without objection, and a judgment was ordered for the substituted plaintiff, (M.) Held, that the objection could not be raised for the first time on appeal that the supplemental complaint stated a cause of action which did not exist when the action was brought.

Appeal from special term.

Action by Mary Senft against the Manhattan Railroad Company and the-Metropolitan Elevated Railway Company. Judgment was ordered for plaintiff, and defendants appeal. Eor former report, see 9 N. Y. Supp. 304 .

Argued before Sedgwiok, C. J., and Truax and Dugro, JJ.

Davies & Rapallo, (Julien T. Davies and Brainard Tolies, of counsel,) for appellants. James B. Ludlow, for respondent.

The action was for an injunction against the defendants continuing to maintain their elevated railroad in front of plaintiff’s premises, and for damages. The original plaintiff was one Christian Senft. After the action was begun he conveyed to the present plaintiff the property in the action. Upon her application it was ordered that she be substituted as plaintiff, and it was further ordered that so much of the cause of action alleged in the complaint as is for equitable relief, viz., for an injunction, etc., may be, and the same is, continued in the name of the substituted plaintiff, upon condition that within 40 days the substituted plaintiff serve a supplemental complaint setting up the said equitable cause of action. Under this-provision a supplemental complaint was served, but it may be here assumed-that it did not set up the equitable.cause of action for which action was brought, and that it alleged an original cause of action in her own favor that had accrued upon the conveyance of the property to her being made. The defendants served an answer to this supplemental complaint. The issues were tried, and judgment was ordered for plaintiff on a case that supported the supplemental complaint. It is now objected to the judgment that it was not competent to try any other case than such as existed at the beginning of the action by Christian Senft, and that the present plaintiff could not recover upon a cause of action that accrued after this action was begun. This objection was not taken upon the trial. There had been no motion to' set aside the eomplaint.as one not allowed by the order of substitution. No proceeding was. taken based upon the ground that the condition of the order had not been performed. All the exceptions upon the trial were such as applied to a case-properly pleaded, and there was no allusion to any defect or irregularity of pleading. The judgment, therefore, cannot be reversed upon the ground) taken on the appeal. The other questions of the appeal must be determined for the respondents, as they have heretofore in other cases been heard and passed upon. Judgment affirmed, with costs.