Scholle v. Metropolitan Elevated Railway Co. ( 1901 )

Hatch; J.:

This action was commenced on January 14, 1892, by William Scholle, Jacob Scholle and Martin Herman, who alleged ownership in common of abutting property, against the elevated railroad companies for an injunction and damages. ■ On February 24, 1894, the premises were sold to W. H. H. Hull and K. Eugene Bunnell.

On July 10, 1900, an action was brought in this court by said Hull and Bunnell against the Manhattan Railway Company for an injunction and damages with respect to the same property, which .action is now at issue and upon the calendar for trial. In September, 1900, a motion was made to revive this action and substitute in place of Jacob Scholle his personal representatives, alleging that .said Scholle died in June, 1897, seized and possessed of an undivided interest in the property. This motion did not disclose that the property had been sold and conveyed since the bringing of the action, .and the plaintiffs being clearly entitled to the relief asked for, no •opposition was made and the motion was granted. Thereafter a supplemental complaint was served alleging the facts as to the death of Scholle as set forth in the motion, and before the defendant’s time to answer the same had expired the papers in this motion were served, wherein it is alleged that the premises were sold to Hull and Bunnell in 1894, by reason of which fact it is desired to make them parties to this action. As the case stood at the time the motion was made the only interest which the plaintiffs had in the action was a claim for the past damages accrued prior to February 24,1894.

The case of Flammer v. Manhattan R. Co. (56 App. Div. 183) is decisive of every question presented by this record. The order appealed from cannot stand if adherence is to be had to the rule announced in that case. No new expression or determination has been given by the Court of Appeals since the decision in the Flammer case, and the expression made use of by the Court of Appeals in deciding the case of Koehler v. New York Elevated R. R. Co. (159 N. Y. 218) was considered by this court and construed as being no authority for granting the present order. So far as this question is concerned, based upon the facts appearing in the- record in this case,-the decision in the Flammer case is conclusive.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Rumsey and O’Brien, JJ., concurred ; Ingraham, J., dissented.