Kane v. Manhattan Railway Co. , 42 N.Y. St. Rep. 415 ( 1891 )

Van Brunt, P. J.

This being an action in equity, I have concluded, upon a careful examination of the questions, that-Mr. Justice Barrett is correct in concluding that damages may be recovered down to the time of trial in these cases. The rule in actions at law is undoubtedly that damages can only be recovered up to time of commencement of actions, and that such action is no bar to recovery of damages for subsequent trespass, or for a counter-claim of the trespass, after the commencement of the action, Uline v. Railroad Co., 101 N. Y. 98, 116, 4 N. E. Rep. 536; Manufacturing Co. v. State, 104 N. Y. 562, 11 N. E. Rep. 264; Hambleton v. Veere, 2 Saund. 169; Bowyer v. Cook, 4 C. B. 236; Holmes v. Wilson, 10 Adol. & E. 503. All these cases were actions at law to recover past damages. In them no recovery could be had for future damage. No rights could be acquired in those actions by which the trespass might be continued. In actions in equity of the kind of the one at bar, the trespass is treated as one to continue, and compensation for such continuance is awarded, and the right to continue acquired; hence it is proper that the whole of the rights of the plaintiff and defendant should be adjudicated upon and adjusted in one action, so that no new action may be necessary to protect the plaintiff for the damages sustained between the time of commencement of actions and time of trial. No right of action arising after the trial, I therefore concur.

Daniels, J., concurs.