Suarez v. Manhattan Railway Co. — 15 N.Y.S. 224

Majority

p. 224

Suarez v. Manhattan Ry. Co. et al.

(Supreme Court, General Term, First Department.

June 26, 1891.)

Headnote

Eminent Domain—Outstanding Lease—Rights of Reversioner.

Where an elevated railroad has been built in a street without making compensation to the abutting owners for the easements of light, air, and access, the right of an owner to enjoin the operation of the road is not affected by the fact that his premises are subject to an outstanding lease. Maeyv. Railway Co., 12 N. Y. Supp. 804 , followed.

Appeal from special term, New York county.

Action by Benigno S. Suarez against the Manhattan Railway Company and the Metropolitan Elevated Railway Company. The facts of this case are the same as in Suarez v. Railway Co., 15 N. Y. Supp. 222 . Defendants appeal.

Argued before Van Brunt, P. J., and Barrett and Patterson, JJ.

Davies & Rapallo, (Julian T. Davies and Samuel Blythe Rogers, of counsel,) for appellants. John A. Weeks, Jr , and Henry A. Foster, for respondent.

What we have said in the ease of Peter S. Suarez against the present defendants ( 15 N. Y. Supp. 222 ) covers all that we deem worthy of consideration in this case, with a single exception. The defendants here contend that the plaintiff is not entitled to an injunction until the expiration of the. term of an outstanding lease of the premises in question. The reverse of this contention was held in Macy v. Railway Co., 12 N. Y. Supp. 804 . It is true that in that case there was an additional support for the ruling in a release and assignment of the easements from the tenant to the landlord. But the main proposition, apart from such release, was distinctly decided; and we think that this decision was correct upon principle. The general doctrine of the Mortimer Case, 8 N. Y. Supp. 536 , that an owner of lands may maintain trespass for an injury to the inheritance, notwithstanding the premises are in possession of a tenant under a lease, has been followed and reaffirmed in many subsequent cases. If such owner may maintain a single action for such trespass, there is no reason why he may not maintain successive actions for continuous trespasses. Conkling v. Railway Co., 12 N. Y. Supp. 848 . And as these continuous trespasses, and the multiplicity of suits resulting therefrom, are one of the grounds upon which equity intervenes, there is, under the present circumstances, a substantial basis for the injunction. The judgment appealed from should therefore be affirmed, with costs.

All concur.