#### FOLLETT et al. v. BROOKLYN EL. R. Co. et al.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

1. Election op Remedies—Trespass or Nuisance.

In an action by abutting property owners against an elevated railway company to enjoin the operation of defendant’s road, for rental damages, plaintiff cannot be compelled to elect whether he will try the cause as for a continuing trespass, or as for a nuisance, since he has a right to plead and prove the facts on which his rights depend.

2. Elevated Railroads—Action por Damages to Abutters—Equity Jurisdiction.

Where plaintiffs in such case brought the action as trustees of the property, their right to rental damages is not affected by the conveyance of the property to them as individuals by the cestui que trust, pendente lite.

Appeal from special term, Kings co-unty.

Action by George-Follett and Susan F. Denslow, individually, and Van Burén Denslow and William T. Reynolds, as executors and trustees of the will of Walter P. Denslow, deceased, against the Brooklyn Elevated Railroad Company and the Union Elevated Railroad Company for an injunction. From a judgment awarding an injunction unless defendants pay plaintiffs $1,000 as fee damages, and pay $500 as rental damages, defendants appeal.

Affirmed.

Argued before DYKMAH and PRATT, JJ.

Hoadly, Lauterbach & Johnson (Henry L. Scheuerman, of counsel), for appellants.

Benjamin B. Kenyon (Benjamin B. Kenyon and Woolsey Carmalt, of counsel), for respondents.

PRATT, J.

At the opening of the trial, defendants moved that plaintiffs be compelled to elect whether they would try the cause as for a continuing trespass, or as for a nuisance. The motion was properly denied. Under our present system, parties are allowed to plead the real facts. What benefit will result from that liberality, if, upon the trial, the party may not prove the facts as pleaded? A *201party has an absolute right to plead and prove the facts upon which his rights depend,—to prove them all, and to prove them as they took place. The determination of the rights that flow from those facts is the duty of the court, which cannot properly be transferred to the party. The only motive conceivable for urging such a motion is a hope that the party might make an unwise election, to the detriment of his rights. To compel a party to take a position involving •such a peril would be an abuse of discretion which would speedily be corrected by an appellate court.

The principal objection urged against the judgment is that' the transfer pendente lite destroyed the right of plaintiffs to recover rental damages. The original complaint was brought by the plaintiffs as trustees of an express trust. Two years afterwards a supplemental complaint is filed, by which it appears that the rights of the cestui que trust have been relinquished to the trustees. In this there is nothing that affects the merits of the action, nor the rights of the plaintiffs to recover. In the one case the plaintiffs would be liable to account for the fruits of the judgment. In the other they are free from such liability. The only concern the defendants have with the question is that they be not compelled to pay their debt twice. To that danger they are not exposed. '

Judgment affirmed, with costs.