#### Francis C. Lawrence, Respondent, *against*The Metropolitan Elevated Railway Company *et al.,*Appellants.

(Decided January 5th, 1891.)

In an action to restrain defendants from maintaining and operating their elevated railway along the street in front of premises belonging to plaintiff, the judgment for plaintiff awarded an injunction, with a condition that it should be inoperative upon payment by defendants of a certain sum as damages to the fee from the maintenance of the railroad, and also awarded damages for pest injury. *Held,*that error at the trial, in admitting proof of an offer for the property, as evidence of the value of the fee, was not *502ground for reversal, either as affecting the award of past damages, since that was merely, incidental to relief by injunction, or as affecting the amount to be paid in avoidance of the injunction, since that condition was not open to attack by defendants, whether they should reject or accept it; the amount to be paid not being so extravagant as to authorize interference to redress an abuse of discretion.

A suspension of the operation of such injunction should not be granted to defendants, upon the acquisition of the property by them by condemnation proceedings, either as a matter of right, or as supported by any equity, under the circumstances; they having for ten years intruded on plaintiff’s property without effort, by any legal method, to acquire it.

Appeal from a judgment of this court entered upon the decision of the judge on a trial by the court without a jury.

The facts are stated in the opinion.

*Julien T. Davies*.and *Brainerd Tolies,*for appellants.

*Henry A. Foster,*for respondent.

Pryor, J.

Appeal from a judgment in equity awarding an injunction and damages for injury to plaintiff’s property.

The action is to restrain the maintenance and operation of defendant’s railroad in the highway fronting plaintiff’s property ; and, as incidental relief, for the loss already sustained by plaintiff from the depreciation in the rental value of that property occasioned by the presence and operation of defendant’s railroad.

The chief error alleged as ground for the reversal of the judgment is, the admission of incompetent evidence; namely, proof of an offer for the property as evidence of its fee value.

In our view, upon the assumption of the incompetency' of the evidence, its admission is inoperative to affect the validity of the judgment.

The basis of the action is a right to injunctive relief; and the recovery of past damages is merely incidental, and is allowable only for the purposes of complete justice; upon the principle that when equity legitimately acquires jurisdiction, it will proceed to dispose of the entire controversy *(Hender*
      *503
      *son*v. *Railroad Co.,*78 N. Y. 423; *.Shepard*v. *Railroad Co.*117 N. Y. 442). “ The court having gained jurisdiction for the purpose of restraining the defendant, it was proper to award damages for the injuries sustained before the commencement of the action ” *(Fox*v. *Fitzsimmons,*29 Hun 574, 578). It results that if no ground of equitable relief be established—here, a right to an injunction—plaintiff cannot have an award of damages, but the action must be dismissed *(Bradley*v. *Aldrich,*40 N. Y. 504; *Wheelock*v. *Lee,*74 N. Y. 495; *Arnold*v. *Angel,*62 N. Y. 508; *Beck*v. *Allison,*56 N. Y. 366).

Still more obvious and indisputable is it, that a right to recover compensation for the value of the fee is not a constituent of the cause of action exhibited by the complaint.

'The judgment imposes no obligation on defendants to pay plaintiff the value of the fee. Indeed, a judgment purporting to impose such obligation, would be a legal solecism: for such a judgment involves the concession that damages afford a complete reparation to plaintiff; but equity is ousted of jurisdiction the moment it appears that money is an adequate remedy for the wrong. Then, too, in legal effect the injunction stops the injury; but an award of damages for the fee proceeds upon the hypothesis that the injury is to continue in perpetuity.

. Again : upon the supposition that the award of damages for the fee is intended as compensation for the taking of plaintiff’s property by defendant railroad company—and such award can be for no other purpose—we are confronted by the fact that the constitution of the state (art. 1 § 7) has prescribed another tribunal for the ascertainment of the amount to be paid for property taken for public use; and so a court of equity has no jurisdiction of the subject *(Hilton*v. *Bender,*69 N. Y. 76, 86; *Menges*v. *City,*56 N. Y. 374).

. It follows, therefore,' that when the court proceeded to inquire as to the value of plaintiff’s fee taken by defendant, it was not engaged in the determination of any issue in the action—the sole issue being as to the right to an injunction— nor in administering any relief legally comprehended within *504the scope of the action as a suit in equity—such incidental relief being only an award of damages for past injuries. But the true theory of the case is this: that, having determined plaintiff’s right to an injunction restraining the maintenance of defendant’s railroad, the court, as a favor to defendant, proceeded to couple its injunction with a condition : namely, that if defendant would pay plaintiff a certain sum, then the operation of the injunction should be arrested. There was no compulsion upon the court to proffer defendant this alternative ; but it would have satisfied all the legal exigencies of the action by the issuance of an absolute injunction. On the other hand, defendant is under no obligation to accept the alternative; but is perfectly free to reject the condition *(Bartlett*v. *Stinton,*L. R. 1 C. P. 483, 484; *Henderson*v. *Railroad Co.,*78 N. Y. 423, 430; *Carter*v. *Railroad Co.,*28 N. Y. St. Rep’r 582; *Eno*v. *Metropolitan R. Co.,*56 N. Y. Super. Ct. 313; *New York Nat. Ex. Bank*v. *Metropolitan R. Co.,*53 N. Y. Super. Ct. 611, 108 N. Y. 660; *Welsh*v. *Metropolitan R. Co.,*8 N. Y. Supp. 492). Hence this dilemma: namely, should the defendant reject the invitation to pay plaintiff the value of his fee, then manifestly no injury ensues to defendant from any error in ascertaining the amount of that value; or, should the defendant accept the offer as a condition of escape from the injunction, then, by all authorities, he is precluded to challenge that condition *(Carll*v. *Oakley,*97 N. Y. 633; *Radway*v. *Graham,*4. Abb. Pr. 468 (Com. Pleas) ; *Smith*v. *Rathburn,*75 N. Y. 122; *Murphy*v. *Spaulding,*46 N. Y. 559; *Knapp*v. *Brown,*45 N. Y. 210; *Genet*v. *Davenport,*59 N. Y. 648 ; *Wallace*v. *Castle,*68 N. Y. 375 ; *Bennett*v. *Van Syckel,*18 N. Y. 481; *Marvin*v. *Marvin,*11 Abb. N. S. 97 ; *Chapin*v. *Foster,*101 N. Y. 1; *Dumbman*v. *Schulting,*6 Hun 29; *Claflin*v. *Frenkel,*29 Hun 288; *Platz*v. *City,*8 Abb. N. Gas. 392).

Whether defendant reject or accept the condition, *i. e.,*payment of the fee value to arrest the injunction, he cannot attack the condition, for another reason : namely, that it was propounded by the court as a favor and in the exercise of its discretion *(Smith*v. *Dodd,*4 E. D. Smith 643; *Matter of*
      *505Bradner, 87 N. Y. 171, 177, where it is said, “ liaving submitted himself to the discretion of the court, he cannot complain of the manner of its exercise; ” *Chapin*v. Foster, 101 N. Y. 1; *Vibbard*v. Roderick, 51 Barb. 616 ; *Matter of Tyng,*17 Week. Dig. 234; *Buffalo Ferry Co.*v. Allen, 12 Civ. Pro. 64; *Bartlett*v. *Stinton,*L. R. 1 C. P. 484).

The conclusion is, that since the alleged error infects no element of the judgment, it is inoperative to impair the validity of the judgment.

It is6proper, however, to add that, in our opinion, the sum awarded plaintiff for the value of the fee, is not so extravagant as, on review by the General Term, would authorize an inference of an abuse of discretion by the court below.

Appellant contends further,.that the error in the admission of the evidence affects the judgment for damages from depreciation of the rental value of the property. But the error, if any, was plainly of no prejudice to the defendant; because, first, the effect of the evidence in proof of rental value was extremely faint and remote; secondly, the depreciation of rental value was substantially the same upon the evidence of both parties; thirdly, where any discrepancy appears, the plaintiff’s estimate is supported by proof of the rent actually received; and fourthly, the sum allowed for depreciation.of rental value is less than is shown by the evidence.

An obvious corollary from the proposition that the condition of defeasance attached to the injunction was purely gratuitous and discretionary is, that the defendant could not, of right, demand that the operation of the injunction should be suspended upon the- acquisition of the property in controversy by a condemnation proceeding. Nor, had the application for such suspension been addressed to the favor of the court, would it have been supported by any apparent equity— seeing that for ten years defendant has been an intruder upon plaintiff’s property, and yet has made no effort, by a legal method, to acquire the property it has so long and so law- ' lessly appropriated.

In the remaining allegations of error urged by appellants, *506we perceive none of sufficient gravity to require a reversal of the judgment; and, accordingly, it must be affirmed, with costs.

J. F. Daly, Ch. J., and Bischoff, J., concurred. Judgment affirmed, with costs.