Knapp v. New York Elevated Railroad

to the railroad. That the diminution of rent was not peculiar to the property in suit, and therefore did not arise from any conditions not common to property on Hanover square, a careful examination of the testimony clearly demonstrates. The referee’s report was dated November 29, 1892, something more than 3 years and 7 months after the action was commenced, and the period, therefore, for which the damages were awarded, was something more than 9 years and 7 months. The average period for which appellants must be charged with interest is more than years. The referee estimated the rental damage per annum, including all interest, at about $900. We consider the estimate a moderate one, and that there is ample evidence to support the award of $8,692.50 for rental damage. Under this point it is claimed upon behalf of appellant that such damages, if any, as the defendants, respondents are entitled to recover, should be estimated from six years prior to the service of their answer, and not from the date of the service of the summons; that, in awarding to them exactly the same sum as given to the plaintiff, the referee erred. The answer of the defendants, respondents, was served on March 17,1891, nearly two years after the commencement of the action. By the plan of appellants, in which they claim to set up the statute of limitations in their answer, they allege that “the pretended cause or causes of action set forth in the answer of the codefendants herein did not, nor did any of them, accrue to the plaintiff herein, or to his predecessor or predecessors in title, within six years next preceding the commencement of this action.” The cause of action to which the objection now under consideration is raised never belonged to the plaintiff. The plea seems to be defective, but, assuming that it is sufficient to interpose the defense of the statute of limitations to the codefendants’ claim, we are of opinion that the rule of limitations applicable to the codefendants’ claim does not differ from that which controls the plaintiff’s claim. The codefendants’ predecessor was a party to the action at the time it was commenced, and the rights of his representatives are such as belonged to him at the commencement of the action, so far as relates to the statute of limitations. The time when the action was commenced as to John W. Hamgrsley (to whose position as party to the action, as well as to whose position as owner of the moiety, these codefendants succeeded) must be held to be the time when it was commenced against the railroad companies. The duty imposed upon John W. Hamersley and his representatives, under section 521 of the Code, (which regulates the practice when a defendant, having a claim against a codefendant, desires a determination of it,) was to serve a copy of their answer upon the attorney for each of the. defendants to be affected by the determination, at least 20 days before the trial. That was done in this case. We are of opinion that the referee was warranted in awarding to the defendants, respondents, the same damages to rental value as were awarded to the plaintiff.

2. It is claimed upon behalf of the appellants that “the proper parties are not before the court.” The parties to the action to

whoin awards have been mp.de are trustees, and the. defect claimed consists in .the absence from the action as parties- of the.remainder-man under each of -the trusts. These remainder-men are the children of Andrew S. Hamersley (whose names appear in the above statement of -facts) and James Hooker , Hamersley and Virginia .Field. Heither of these persons individually is a party to the ac•tion. At the time the order was made bringing in the representatives of John W. Hamersley, it must have appeared by the motion •papers what the character .of their .interest was. At this time The-railroad companies did not ask to.have, brought in the remainder-men under the will of John W. Hamersley, but elected that the present codefendants should be brought in, and acquiesced in the order bringing them in without any supplemental complaint. The will of John W. Hamersley, creating the trust, under which the defendants, : respondents, acted, was annexed to the answer of the said defendants, respondents, and the precise interest of the said defendants, . respondents, in said property, as appeared by the will, was thereby ■disclosed.' The answer of the railroad companies to this answer did not raise the question that the proper parties were not before the court,- nor was it -raised when the motion was made for a reference. It appeared on the face of the complaint that Shepard Knapp was ■trustee only for the lifetime of Andrew S. Hamersley. Yet neither by answer nor by demurrer to the complaint was the point taken that the remainder-men were necessary parties. After the plaintiff had rested, the counsel for the railroad companies moved “to dismiss the complaint and the claim of the codefendants, on the ground that añ the parties are not before the court, and that, under the decision in the Bach Case, [infra,] the proceedings herein before the referee must be arrested until the plaintiffs have had an opportunity to bring in- all the necessary parties, in order to give the defendants absolutely correct title to the easements for which ■they claim damages.” This objection was raised too late. The defendants the railroad companies, having failed to raise the question of defective parties, either by demurrer or by answer, and having raised no objection by reason •thereof until after the plaintiff had closed his case, must be held-to have waived such objection. Decker v. Decker, 108 N. Y. 128 , 135, 15 N. E. Rep. 307 ; Code Civil Proc. §§ 488, 498, 499. But ah the necessary parties to the adjudication herein made were before the court. Ho fee damage is awarded. The remainder-men are not even proper parties to, or interested in, the award for past damages. The Bach Case, 60 Hun, 128 , 14 N. Y. Supp. 620 , upon which the counsel for the railroad companies based the objection now under consideration, does not support the appellants’ contention. In that case the plaintiff’s interest terminated upon 'her death or marriage, but fee damage was awarded, and computed upon her expectation of life. It was error to thus place upon the defendant the burden of sustaining the hazard of the termination of plaintiff’s estate by either death or marriage. For this error the judgment was reversed. The case at bar is free from any such risk.

3. The rulings objected to under the remaining points in the appellants’ brief, excepting the alleged, error discussed under the seventh point, have been examined, and, in our opinion, do not demand separate and special notice. The referee did not fix, by computation, a certain sum, and award the same, as alternative relief, but gave the railroad companies time in which to condemn. Their proposed findings, therefore, bearing upon the question of a proper .sum as alternative relief, were immaterial. For this reason many of the exceptions to the refusals to find are not well taken. A careful examination of the numerous exceptions to findings made and refusals to find fails to disclose any material error. We reach the same conclusion in reference to the exceptions to the admission and exclusion of evidence.

Under the appellants’ seventh point, it is urged that the referee erred in awarding costs and allowance to the defendants, respondents. In all equity cases, costs are discretionary, both at special and at general term. See Herrington v. Robertson, 71 N. Y. 280 . Costs in equity actions referred to a referee are within the discretion of the referee. Phelps v. Wood, 46 How. Pr. 1 . The referee, in making the award of costs herein, to which objection is taken, does not appear to have abused the discretionary power with which .he was vested by disregarding well-settled principles applicable thereto. The defendants, respondents, had a substantial claim against the defendants, appellants, the railroad companies, who elected that they be brought in. Their rights have been litigated, and we do not think they should forfeit costs because they do not occupy the nominal position of plaintiffs. Code, §§ 3230, 3253. It is not unusual to allow costs to one defendant against another in the . same case. Budd v. Munroe, 18 Hun, 316 ; Chester v. Jumel, (Sup.) 5 N. Y. Supp. 823 . For these reasons, we think the judgment as to costs and allowance should not be disturbed. We can find no just reason for a reversal of the judgment. It must be affirmed, . with costs to plaintiff; and, since the defendants, respondents, have been compelled to argue additional questions to those presented by the appeal as against the plaintiff, costs must be awarded to the , defendants, respondents, also.