Pegram v. New York Elevated Railroad , 1891 N.Y. Misc. LEXIS 2484 ( 1891 )

Per Curiam.

The action was for an injunction against the defendants continuing to use the easements of light, air, and access appurtenant to plaintiffs’ premises, as the complaint stated, and for damages. The issues came on for trial at an equity term. In the course of the trial the plaintiff, as a witness on the plaintiffs’ opening case and on cross-examination for defendants, testified that plaintiffs had sold, a year before, the said premises to which the easements were appurtenant. The conveyance of the property was produced and proved. It contained a “reservation,” so called, to the plaintiffs,, the grantors, of all damages suffered or to be suffered to the property from the-infringement of the easements by the defendants, and also, as was claimed by the plaintiffs’ counsel, a reservation of the easements themselves. Thereupon it was claimed by defendants’ counsel that, it appearing that the plaintiffs had conveyed the abutting property, they had no equitable right to an injunction, and the action, upon that fact appearing, was one at law for damages, only, and the defendants had a right to trial by jury, which they then claimed. The plaintiffs’ counsel made but one objection to the demand of the defendants. They interposed no other objections, if any there are; and such cannot be urged upon appeal. The objection urged was that the right to a trial, by jury had been waived by the defendants, the defendants’ counsel having-stated that the existence of this deed was known by them before the trial was-begun. This was denied by counsel for defendants. The deed was made-July 8,1889. It does not appear that the defendants knew of the deed before-it was produced upon the trial or before the trial had begun. The defendants’ counsel had not stated that the deed was known by them before the trial was begun. The court announced its determination to strike the ease from the equity calendar, with leave to the plaintiffs to make such motion as they saw-fit, and, if they did not see fit to make such motion, to notice the case for trial before a jury. The order made simply struck the cause from the equity term calendar. The action of the court was correct, so far as was concerned the only objection made to it by the plaintiffs. The order appealed from is affirmed, with $10 costs.