Pegram v. New York Elevated Railroad — 39 N.Y. St. Rep. 349

Majority

p. 349

John G. Pegram et al., Trustees, App’lt, v. The New York El. R. R. Co. et al., Resp’ts.

(New York Superior Court, General Term,

Filed June 1, 1891.)

Headnote

Practice—Striking cause from equity calendar

In an action for an injunction against an elevated railway company continuing to use the easements of light, air and access appurtent to plaintiff’s premises and for damages, it appeared that theretofore plaintiff had conveyed the premisos in question by a deed which reserved to him all damages suffered or to be suffered to the property from the infringement of the easement by defendants. Held, that the cause was properly stricken from the equity calendar upon defendants’ motion, as the only objection made to it was that the right to atrial by jury had been waived by defendants, they knowing of the existence of the deed, and this being denied.

Appeal by plaintiff from an order striking the case from the ■calendar of the equity term of the court

Roger Foster, for app’lts; Edward G. James, for resp’ts.

—The action was for an injunction against the •defendants continuing to use the easements of light, air and access appurtenant to plaintiff’s premises as the complaint stated, and for damages. The issues came on for trial at an equity term. In the course of the trial, the plaintiff as a witness on the plaintiff’s opening case and on cross-examination for defendants, testified that plaintiffs had sold, a year before, the said premises to which the easements were appurtenant. The conveyance of the property was produced and proved. It contained a-reservation, so-called, to the plaintiff, the grantors, of all damages suffered or to be suffered to the property from the infringement of the easements by the defendants, and also, as was claimed by the plaint-' iff’s counsel, a reservation of the easements themselves. There

p. 350

upon it was claimed by defendants’ counsel that, it appearing that the plaintiff had conveyed the abutting property, they had no equitable right to an injunction, and the action, upon that fact appearing, was one at law for damages only, and the defendants had a right to trial by jury which they then claimed.

The plaintiff’s counsel made but one objection to the demand of the defendants. They interposed no other objections, if any there are, and such cannot be urged upon appéal. The objection urged was, that the right to a trial by jury had been waived by the defendants, the defendants’ counsel having stated that the existence of this deed was known by them before the trial was begun. This was denied by counsel for defendants. The deed was made July 8, 1889. It does not appear that the defendants knew of the deed before it was produced' upon the trial or before the trial had begun. The defendants’ counsel had not stated that the deed was known by them before the trial was begun.

The court announced its determination to strike the case.from the equity calendar, with leave to the plaintiffs to make such motion as they saw fit. and if they did not see fit to make such motion, to notice the case for trial before a jury. The order made simply struck the cause from the equity term calendar.

The action of the court was correct so far as was concerned the only objection made to it by the plaintiffs.

The order appealed from is affirmed, with ten dollars costs.

Sedgwick, Ch. J., Freedman and Me Ad am, JJ., concur.