Shephard v. Manhattan Railway Co.

The only ground taken on the argument,, as a reason for reversal was, that the complaint unites causes of action which do not affect all the parties under section 481 of the Code of Civil Procedure, which declared, after union of causes had been allowed by the previous section, “but it must appear upon the face of the complaint that all the causes so united belong to one of the foregoing subdivisions of this section.” That they are consistent with each other, and except as otherwise prescribed by law, that they affect all the parties to the action.

Leaving unconsidered for a while the effect of making a party plaintiff, or parties plaintiff, Frances 8. Shephard, individually and as administratrix of Francis N. Shepard, it may first be said there is not in the complaint more than one cause of action. That is an equitable cause of action for an injunction, which carries with it an equitable right to recover the damages that have followed from the trespass, as to which the plaintiffs have the remedy of an injunction. This latter right to damages is not a separate legal cause of action, but a part of an equitable cause of action. In such cases it is proper to make any one, who has a common or joint interest in the damages actually done, or in any part of them, «a party plaintiff. (Section 446, C. C. P.; Story’s Eq. Pl. §§ 72 to 76.) It is not a misjoinder if all the plaintiffs have an interest in the diction, although it is not a co-extensive interest. A tenant for life and remainderman may join as plaintiffs in a suit that concerns their interest in the estate, Story Eq. PL, § 207 (n), a fortiori where the action concerns a common interest. All this is in part grounded on the equitable consideration, that as few litigations as possible should be made against the defendants.

The injunction asked, was against the continued operation of the elevated road of the defendants and the maintenance of its structure. The remedy for chis was one equitable cause of action for the injunction and the recovery of the damages caused at least before the bringing of the action.

Before 1887 the plaintiffs, Robert F. Shepard, Mary N. Shepard and Francis N. Shepard, were the tenants in common of the premises affected by the railroad. In 1887 Francis N. Shepard died, leaving as his heirs, his children^ The children became tenants in common with the owners of the other two undivided third parts. Although the heirs could not recover for damages before the death of their father, yet under the rules stated, it was proper to make them plaintiffs. The other tenants in common- had a right to recover damages inflicted continuously, from before the death of the father of the children, and afterwards to the bringing of the action at least. The children had a right to the one-third of the damages from the time of their father’s death. All the tenants in common had become interested

Now going to the joinder of Frances S. Shepard, as administratrix and individually, it should be held that she had a right as administratrix to the damage that had been suffered by the land owned by her intestate Francis N. Shepard, and that had been suffered before his death, and for that reason could be made plaintiff.u

I will also hold that her personal interest as widow without dower assigned was such an interest, that it might be protected by injunction against the effects upon the land in which she might have an estate in dower. This is an inference from Simar v. Canaday, 53 N. Y., 298 . The same case supports the joinder of the other parties.

I further suggest that as to Frances S. Shepard individually, the question is not whether she is entitled to recover as having a right of dower before assignment, but whether her claim to be so entitled from its nature is a part of an alleged cause so that she could be a plaintiff.

The judgment and order should be affirmed with costs.

Freedman and O’Gorman, JJ., concur.