Sanders v. New York Elevated R. R. Co. — 27 N.Y. St. Rep. 795

Majority

p. 795

Elizabeth B. Sanders, Individually and as Executrix of Charles W. Sanders, Deceased, Resp’t, v. The New York Elevated R. R. Co. and The Manhattan R. Co., App’lts.

(New York Common Pleas, General Term,

Filed December 2, 1889.)

Headnote

Abatement and revivor—Action for damages against elevated railroad DOES NOT ABATE.

An action for an injunction against an elevated railroad and damages for its maintenance is one in equity affecting rights to real estate, and does not abate on the death of a sole plaintiff, but may be revived in the name of his devisee and personal representatives.

Appeal from order reviving and continuing an action brought against defendants, on account of the construction and operation of an elevated railroad on Third avenue, for an injunction and damages.

Edward, C. James, for app’lts; Henry G. Atwater, for resp’t.

This action was commenced by the late Charles W. Sanders. He died seized of the premises to which the action relates, and leaving a will, in and by which he appointed his wife, Elizabeth B. Sanders, sole executrix, and made her sole devisee of his real estate. The present appeal is from an order reviving the suit, and directing it-to be continued in the name of said Elizabeth B. Sanders individually and as executrix.

The main contention of the learned counsel for the appellant is founded on the assumption that the present action is a common

p. 796

law action for trespass. The case of Dyckman v. Allen, 2 How. Pr., 17 , a special term decision, is cited, which holds that an action for trespass abates upon the death of one of several plaintiffs, and cannot be continued in the name of the survivors. Prom such proposition of law the learned counsel argues that the case at bar-abated upon the death of the sole original plaintiff, and that, in order to pursue her remedy for an injunction, Mrs. Sanders must, as devisee, begin a new action.

But this suit is not technically an action for trespass. It is an action for an injunction, in which incidentally damages for the maintenance of the elevated railroad are demanded. Undoubtedly the former principles of law on this subject have-been modified, and quite materially extended, to fit the peculiar exigencies of these litigations. In Shepard v. Manhattan R. Co., 5 N. Y. Supplt., 189; 24 N. Y. State Rep., 185, it was held that the claim for the injunction and for damage constitute but a single cause of action, and that the heirs of a co-owner and his administrators are proper parties to be joined as plaintiffs. The tendency of the decisions has been to bring these actions into the general class of equitable actions founded upon the title to real estate, such as actions for partition, for specific performance, etc.

It is the settled rule in equity that such actious do not abate upon the death of the plaintiff, but may be revived and prosecuted in the name of the proper successors in interest. Hoffman v. Tredwell, 6 Paige, 309 ; Douglass v. Sherman, 2 id., 359; Earl of Durham v. Legard, 34 Beav., 442; Jackson v. Ward, 1 Giff., 30.

It is conceded that all the rights demanded by the original plaintiff pass in some form or forms to some person or persons. Regarding the case at bar, therefore, not as an action for trespass, but simply as an action in equity affecting rights in real estate, it should be revived in its entirety. This course was adopted in granting the order appealed from. We have formerly held, McCrea v. The N. Y. Elevated Railroad Company, 13 Daly, 302 , that a devisee and executrix might properly join in bringing one of these actions. It follows that if the action is to be revived the devisee and executrix are the proper persons to be substituted as plaintiffs. See Shepard v. Manhattan R. Co., supra.

A revival precisely similar to the one here complained of was made in Henderson v. The N. Y. Central Railroad Company, 78 N. Y., 423 . A testator died, pendente lite, and the suit, which was for an injunction and damages against the Central Railroad Company, for depriving said testator of land, was revived in the name of his devisees and executors, and in such form prosecuted to judgment. It appears that the revival was by order of the court, Taut whether the points which appellant now raises were taken and discussed, or such order was made without opposition, the reported record of the case does not disclose. In any event we approve of the course there adopted.

The order appealed from should be affirmed, with costs.

Van Hoesen and Bookstaver, JJ., concur.