(78 Hun, 439.)

#### NEWELL et al. v. MANHATTAN RY. CO. et al.

(Supreme Court, General Term, First Department.

May 18, 1894.)

1. Equity-Adequate Remedy at Law—Pleading.

A defense in an equitable action that plaintiff has no adequate remedy at law must be pleaded.

2. Parties—Joinder op Plaintiffs—Harmless Error

In an action by a grantor and infant grantee against an elevated railroad company to enjoin the operation of the railroad in the street on which the premises conveyed abut, and for past damages thereto, defendant cannot, *203after judgment, object that the grantor was improperly joined as a plaintiff, since the judgment would estop him from afterwards suing in case the grantee should on coming of age repudiate the conveyance.

8. Elevated Railroads—Appropriation of Easements—Action by Infant.

In an action by an infant against an elevated railroad company to restrain the operation of defendant’s road in the street on which plaintiff’s premises abut, and for past damages, the court cannot appoint a special guardian for the infant plaintiff, and authorize him to convey the infant’s interest in the easements, where no such relief was asked for in the complaint.

Appeal from special term, New York county.

Action by Isabella Tucker Newell, Ella V. A. Dayton, and Sarah B. Tucker (by Victoria A. Johnson, her guardian ad litem) against the Manhattan Railway Company and another, for an injunction, and for damages to plaintiffs’ premises, known as “Nos. 123 and 125 West Broadway.” From a judgment awarding plaintiffs $5,795.36 damages, and enjoining the operation of defendants’ railroad unless defendants pay $7,500 for a conveyance of the easements taken and impaired by them, defendants appeal.

Reversed.

In 1878, Sarah B. Tucker, Isabella Tucker Newell, and Ella Y. A Dayton inquired the fee of Nos. 123 and 125 West Broadway, each having an undivided one-third interest; and on the 9th of May, 1890, Ella V. A. Dayton conveyed her interest to Sarah B. Tucker and Isabella Tucker Newell. At the date of this conveyance, both of the grantees were infants. October 15. 1892, Isabella Tucker Newell became 21 years of age, and Sarah B. Tucker will become 21 years of age July 3, 1897. This lot is situate on the east side of the street, and has a frontage thereon of 37 feet and 8 inches, and is bounded on the west by the east line of the street, the fee of which is not in the plaintiffs. Prior to May 1, 1885, the lot was covered by two brick and frame buildings, two stories in height, the first floors of which were used for business purposes, and the upper floors for dwellings. In 1885 those buildings were removed, and the present building, which is six stories high, and constructed of brick and stone, and is adapted and used for business purposes, was erected, and was ready for occupancy February 1, 1886. The construction of the elevated road in West Broadway was begun in 1876, and was completed and put in operation in 1878. There is a station of defendants’ road at West Broadway and Franklin streets, about 300 feet south of plaintiffs’ premises, which largely increases the number of persons up and down the street in front of' said premises. This action was begun August 11, 1890, to recover damages for the trespasses on the street easements from August 11, 1884, to the date of the trial, and to restrain the maintenance and operation of the road in front of the plaintiffs’ premises. The court found that the damages occasioned by the trespasses from August 11, 1884, to May 9, 1890, when Ella V. A. Dayton conveyed her interest to her sisters, were §3,430.36, one-third of which belongs to Mrs. Dayton, and that the damages for the trespasses committed between May 9, 1890, and December 9, 1893, the date of the decision, amounted to §2,364.82. The judgment also provides that the plaintiffs, upon being paid §7,500, should convey their interest in the easements to the defendants, in which case the injunction was not to issue. It also provides that the guardian ad litem of the infant plaintiff, who, by the judgment, was appointed special guardian, should receive one-half of the said sum,—§3,750,—and hold it, with all the accumulations thereon, until the infant becomes 21 years of age, when it should be paid over to her. The guardian was required to file a bond in the sum of §7,500, with two sufficient sureties, conditioned that she should safely keep such sum. The damages for trespasses committed between August 1, 1884, six years before this action was begun, and May 1, 1885, the date when the old buildings were removed from the lot, were assessed at §72.18, which is at the rate of §100 per year. No damages were *204awarded for trespasses committed between May 1, 1885, and February 1, 1886, when the new building was ready for occupancy, and for the trespasses committed since the latter date the damages were assessed at the rate of $600 per year.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

Ezra A. Tuttle, for appellants.

Eliphalet W. Tyler, for respondents.

FOLLETT, J.

On the trial a joint equitable cause of action in favor of Sarah B. Tucker and Isabella Tucker Newell, two of the plaintiffs, and a joint legal cause of action in favor of all three plaintiffs, were established. Both causes of action arose out of injuries to real property. The defendants, not having objected, by demurrer or by answer, that there was a misjoinder or defect of parties plaintiff, or that causes of action were improperly united, have waived these objections. Code Civ. Proc. § 499. A defendant in an equitable action cannot avail himself of the defense that a plaintiff has an adequate remedy at law, unless it is pleaded in the answer. Truscott v. King, 6 N. Y. 147; Cox v. James, 45 N. Y. 557, 562; Town of Mentz v. Cook, 108 N. Y. 504, 15 N. E. 541; Ostrander v. Weber, 114 N. Y. 95, 21 N. E. 112; Hyatt v. Ingalls, 124 N. Y. 93, 105, 26 N. E. 285; Buffalo Stone & Cement Co. v. Delaware, etc., R. Co., 130 N. Y. 152, 29 N. E. 121; Watts v. Adler, 130 N. Y. 646, 29 N. E., 131; De Bussierre v. Holladay, 4 Abb. N. C. 111, 55 How. Pr. 210, so far as it conflicts in the cases cited, is overruled. Sarah B. Tucker and Isabella Tucker Newell, being the owners of the fee, had the right to maintain this action in equity to restrain the defendants from maintaining their road, and, incidentally, to recover such damages as they had sustained by the past trespasses; and it is the úsual rule that in equitable actions all persons having interests in the controversy should be made plaintiffs or defendants, and their interests determined. The presence of Mrs. Dayton as á plaintiff in this action does not harm the defendants) but prevents the necessity of another action; and the defendants should not, now or hereafter, be permitted to raise this defense.

The appellants urge that the conveyance by Mrs. Dayton of her one-third interest in the premises to her sisters, having been made while the grantees were infants, they may evade the grant when they reach their majority, and thus expose the defendants to an action in behalf of Mrs. Dayton. Isabella Tucker Newell became 21 years of age October 15, 1892, since which date she has prosecuted this action to judgment, and it is now too late for her to repudiate the conveyance. Should Sarah B. Tucker, on becoming of full age, repudiate the grant to her, a one-sixth interest would revert to Sirs. Dayton, who is a party plaintiff in this action; and she would be estopped by the judgment herein, which she has aided to secure, from prosecuting another action on the claim enforced by her in this suit. The presence of Mrs. Dayton as *205a party plaintiff is a protection to the defendants’ present and future interests.

The part of the judgment awarding an injunction unless the defendants pay §7,500 upon receiving a conveyance of the easements rests on the theory that the court had power to appoint in this action a special guardian for the infant plaintiff, and authorize the guardian to convey the ward’s interest to the defendants. This is not a proceeding to sell an infant’s real estate, nor is it an action of partition, nor was it brought for the purpose of divesting the infant’s title. No such relief is asked for in the complaint, nor are the allegations therein sufficient to warrant such relief. And the special term erred in appointing a special guardian, and directing her to convey the infant’s title. Under such a conveyance the defendants would not acquire a legal title to the interest of the infant in the easements, and for this error the judgment should be reversed, and a new trial granted, with costs to the appellants to abide the event. All concur.