Majority
p. 498Benigno S. Suarez, Resp’t, v. The Manhattan Railway Company et al., App’lts. (Supreme Court, General Term, First Department, Filed June 26, 1891.)
Headnote
Eminent domain—Injunction—Owner’s right to not affected by outstanding lease.Where an elevated railroad has been erected in a street without compensation to the abutting owners for their easements of light, air and acess, the right of such owners to an injunction restraining the operation of the road is not affected by the fact that their premises are subject to outstanding leases.
Appeal from a judgment of the special term, granting the plaintiff an injunction nisi, and an award for past damages.
Julien T. Davies and Samuel Blythe Rogers, for app’lts; John A. Weekes Jr., and Henry A. Foster, for resp’t.
—What we have said in the case of Peter S. Suarez against the present defendants, covers all that we deem worthy of consideration in this case, with a single exception. The defendants here contend that the plaintiff is not entitled to an injunc
p. 499
tion until the expiration of the term of an outstanding lease of the premises in question. The reverse of this contention was held in Macy v. Metropolitan Elevated Railway Company, 36 N. Y. State Rep. 245. It is true that in that case there was an additional support for the ruling in a release and assignment of the easements from the tenant to the landlord. But the main proposition, apart from such release, was distinctly decided.- And we think that this decision was correct upon principle. The general doctrine of the Mortimer case (29 N.Y. State Rep.,263), thatan owner of lands may maintain trespass for an injury to the inheritance, notwithstanding the premises are in possession of a tenant under a lease, has been followed and re-affirmed in many subsequent cases. If such owner may maintain a single action for such trespass, there is no reason why he may not maintain successive actions for continuous trespasses, Conkling v. Manhattan Elevated Railway Company, 12 N. Y. Sup., 848; 36 N. Y. State Rep., 124. And as these continuous trespasses, and the multiplicity of suits resulting therefrom, are one of the grounds upon which, equity intervenes, there is, under the present circumstances, a substantial basis for the injunction.
The judgment appealed from should, therefore, be affirmed, . with costs.
Van Brunt, P. J., and Patterson, J., concur.