Rich v. Manhattan Railway Co. — 46 N.Y. St. Rep. 673

Majority

p. 673

Alexander Rich, App’lt, v. The Manhattan Railway Co. et al., Resp’ts.

(New York Common Pleas, General Term,

Filed June 6, 1892.)

Headnote

Railroad—Elevated—Injunction.

Where the complaint in an action against an elevated road by an owner of several lots alleges injury to the property as a whole and prays an injunction for its protection as an entire and indivisible unit, and it is found that the fee value of all the lots is greater with the railroad than without it, and that the enjoining of the railroad in front of any one of them and the removal thereof would cause its removal from the front of all, and be of no pecuniary benefit to plaintifE, Held, that an injunction should not be granted, although separate parcels were injuriously afEected by the presence and operation of the road.

Appeal from interlocutory judgment, at equity term, denying injunctive relief. Action to restrain the maintenance and operation of defendants’ railroad in front of plaintiff’s seven pieces of property in Park Eow. As facts, the trial court found :

p. 674

“ Thirty-ninth.—The enjoining of the railroad in front of any one of plaintiff’s premises in Park Eow and the removal thereof would cause the total cessation of the operation of the road in front of, and the removal of the same from in front of all of the-plaintiff’s premises on Park Eow.

“ Thirty-sixth.—The granting of an injunction restraining the Operation of the elevated railroad, as prayed for in the complaint, and ordering its removal from in front of all of the plaintiff’s premises abutting thereon, in accordance with the plaintiff’s prayer for relief, would be of no pecuniary benefit to the plaintiff.

“ Thirty-third.—The gross fee value of all the plaintiff’s lots of' land,, as described in the complaint, is greater with the elevated railroad as it is to-day than the fee value would be if the elevated road were removed from in front of all of said buildings.”

Leo C. Dessar, for app’lt; Brainerd Tolles, for resp’ts.

The action is in equity for injunctive relief, Shepard v. Manhattan R. Co., 117 N. Y., 442 ; 27 St. Rep., 705 ; Lynch v. Metropolitan El. R. Co., 41 id., 541, and to its maintenance an insurmountable bar is opposed by the fact that front the wrong complained of no substantial injury results to the plaintiff. Brush v. Manhattan R. Co., 44 St. Rep., 111 ; Purdy v. Manhattan R. Co., 36 id., 43.

But appellant insists that though the collective value of his-several properties be not diminished by the presence and operation of defendants’ railway, yet since separate parcels are so injuriously affected, he is entitled, at all events, to relief as to them ; because benefit to one lot cannot offset damage to another.

To this contention the obvious answer is, that the complaint exhibits but a single cause of action, alleges injury to the property as a whole, and prays an injunction for its protection as an entire and indivisible unit. Herein the case differs from Sperb v. The Metropolitan El. R. Co., 41 St. Rep., 155 , where several causes of action were presented, and damage claimed and relief sought in respect of each piece of property severally and distinctly.

Choosing to allege damage to his lots as one and an integral piece of property, and basing his title to relief upon an assumed aggregate injury, plaintiff must abide ,the consequences of his-election; and so fails in his action because the proof is of an aggregate benefit. Bohm v. Met. E. R. Co., 129 N. Y., 576 ; 42. St. Rep., 247.

From the findings of the learned trial judge it results, that the-restraining defendants’ railroad in front of any one of plaintiff’s-premises would operate an injury to all his property; and this fact, furnishes another and independent reason for refusing the injunction. We have not supposed that a benefit to the complainant gives him a title to equitable relief; nor that the injunctivepower of the court will be exerted to afflict him with a loss.

From the facts found the dismissal of the complaint was the-correct legal conclusion. Brush v. The Manhattan R. Co., 44 St. Rep., 111 .

p. 675

Judgment affirmed, with costs.

Daly, Ch. J., and Bischoff, J., concur,