Van Allen v. New York Elevated Railroad — 51 N.Y. St. Rep. 767

Majority

p. 767

George W. Van Allen, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

(New York Common Pleas, General Term,

Filed March 13, 1893.)

Headnote

1. Equity — When action will be retained for legal relief.

Where it appears that when the action was instituted the plaintiff had a valid claim for equitable relief, but by reason of matters pendente lite th%

p. 768

same has become lost, the court may properly retain jurisdiction and award pecuniary damages.

2. Railroad — Elevated—Transfer of property.

Where, subsequent to the joinder of issue in an action for an injunction and damages against an elevated railroad,-the plaintiff sells his property, the court may retain the action and award such relief as is open to the party.

Appeal from judgment in favor of plaintiff for $2,500 damages and costs for loss of rentals.

Action to obtain an injunction to restrain the maintenance and operation of defendants’ road, and for damages. Issue was joined November 20, 1889. On the 15th of December, 1890, plaintiff sold his property to one Ebel. On the trial before the referee, defendants moved to dismiss the complaint on the ground that the action was purely equitable ; that by said sale plaintiff had lost his right to injunctive relief, and that he had a sufficient remedy at law. The motion was denied, and judgment rendered as above stated.

Julien T. Davies, Brainard Tolles and R. L. Maynard, for app’lts; Wolff & Hodge (J. Aspinwall Hodge, Jr., and Robert Sewell, of counsel), for resp’t.

The precise point now presented has not appeared in any other case. Hitherto, the question was whether, when a party sues in equity, upon equitable grounds alone, claiming equitable relief only, and failing to establish that he ever had any title to equitable relief, he might still proceed as in an action at law, and recover a money judgment for damages. The decision, both of this court and the court of appeals, was against such a contention. Here it appears that when the action was instituted the plaintiff had a valid claim to equitable relief; the referee so finds; and the question is, shall he be turned out of court for matter happening pendente lite, or will the court, its jurisdiction having attached, go on to award compensation in damages, the only relief now available ? We understand the rule to be that jurisdiction once acquired by a court of equity is not afterwards lost; but the court will proceed to administer whatever relief is open to the party. The analogy of this case to a suit for specific performance is perfect, and controls our decision.

It is the unanimous opinion of the court that the judgment should be affirmed.

Daly, Oh. J., and Bischoff, J., concur.