Pegram v. New York Elevated Railroad

Headnote

(202-204 Pearl street and 113 Maiden Lane.) The action was for an injunction against defendants, restraining them from using certain easements appurtenant to his premises and for damages. Striking cause from equity term calendar. Only objections taken below will be considered on appeal. At the opening of the trial the plaintiff on cross-examination testified that a year before he had sold the premises to which such easements were appurtenant. The deed was put in evidence. It contained certain reservations. Upon this appearing defendant’s counsel claimed that the action was one at law for damages only and that defendants had a right of trial by jury. The only objection made to this claim was that the right to trial by a jury had been waived, the defendant’s counsel having stated that the existence of the

deed was known by them before the trial was begun. Counsel for defendants denied this. It did not appear that defendants knew of the deed before the trial was begun. The defendants’ counsel had not stated to the court that the deed was known to them before the trial was begun. The court simply struck the cause from the equity term calendar. Held, that the ruling of the court was correct so far as was concerned the only objection made to it.

Appeal from an order.