Hart v. Brooklyn El. R. — 35 N.Y.S. 39

Majority

p. 39

(89 Hun, 259.)

HART v. BROOKLYN EL. R. CO. et al. WALDIE v. SAME. WRIGHT v. SAME. RYDER v. SAME.

(Supreme Court, General Term, Second Department.

July 26, 1895.)

Headnote

Equity—Retaining Jurisdiction when Acquired.

An action against an elevated railroad company for damages for depriving plaintiff of light and air, and depreciating the value of his property, by building and operating an elevated railroad in the street fronting his property, and for an injunction, being an equitable action, in which all issues can be disposed of, and having been begun before any move was made to acquire the easements in the street, though defendant had operated its road eight years, it is proper to refuse a motion for stay till determination of condemnation proceeding, or to send the ease to circuit.

Appeal from special term, Kings county.

Four separate actions by Patrick Hart, George Waldie, Mary Ann Wright, and Stephen Ryder, respectively, each against the Brooklyn Elevated Railroad Company and the Union Elevated Railroad Company. From an order denying a motion to send the cases to circuit, or for a stay until the determination of condemnation proceedings, defendants appeal. Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

Hoadly, Lauterbach & Johnson (William B. Page, Jr., of counsel), for appellants.

Stephen M. Hoye (Francis R. Whitney of counsel), for respondents.

These actions were for damages for depriving the plaintiffs of light and air, and depreciating in value the plaintiffs’ property, by the building and operating a railroad in the street fronting plaintiffs’ premises.

Under all the circumstances, the court at special term was justified in denying defendants’ motions. The complaint asked for equitable relief, by an injunction restraining a continuing trespass. From an examination of the pleadings it cannot be said that the case does not come under the head of equitable jurisdiction. It is a familiar fuie that, a court once having obtained jurisdiction, it can dispose of all the issues in the case, and give such relief as the facts warrant. It is true that the practice formerly was to send such cases before a commission, and to stay the cases until the coming in of the report of such commission, and it was within the power of the court to have taken such course with these cases, but we think it was discretionary whether to do so or not. The railroad has been built and operated about eight years, and no move had been made by the defendants to acquire the easements in the street until after

p. 40

the commencement of these suits. This long delay was a sufficient cause to justify the plaintiffs in seeking relief, and the court in denying the motion. Notwithstanding the demand of the defendants, the remedy of going before a commission, it is plain, was not as speedy or as adequate relief as an immediate hearing before the court. There have been many cases like these in the last few years, but I have been referred to none or heard of none where a similar one has been dismissed as not within the powers of a court of equity to entertain. Had the defendants sought, under the statute, to acquire the right, the court would have probably stayed the suits until such proceedings were completed, but, the plaintiffs having first commenced suit, jurisdiction attached and the motions were properly denied.

Orders affirmed, with costs. All concur.