SECOND DEPARTMENT, APRIL TERM, 1898.

[Vol. 29. united, in that a separate alleged cause of action to recover damages for alleged trespass, which can exist only against the defendant, the Brooklyn Elevated Railroad Company, as sole defendant, has been improperly united with a separate alleged cause of action for an injunction and incidental damages, which can exist only against the defendant Frederick Uhlmann, as receiver of the Brooklyn Elevated Railroad Company as sole defendant." This position seems to us untenable. There is but one cause of action; the plaintiffs sue for an injunction, and they have a right to ask for the damages incident to the equitable relief. "Although he had a remedy at law for the trespass," say the court, in the case of Williams v. The N. Y. C. R. R. Co. (16 N. Y. 111), "yet, as the trespass was of a continuous nature, he had a right to come into a court of equity and to invoke its restraining power to prevent a multiplicity of suits, and can, of course, recover his damages as incidental to this equitable relief.” This case was cited with approval in the case of Shepard v. Manhattan Railway Co. (supra), the court continuing the subject by saying that: "The violation of the property rights of abutting owners being adjudged in such an action, the awarding of damages, sustained in the past from the defendants, follows, they being, on equitable principles, deemed incidental to the main relief sought. (Story Eq. Jur. 794, 795, 799.) With the object of doing complete justice to all persons interested, if the incidental relief to be granted, by way of damages for the past injuries, affects other parties than the present owners of the fee, is there any reason why those other parties should not be brought into the action? I see none, where the parties so joined derive their rights of action from the same source, in the injury to the same property rights, and have a common interest in their enforcement. The equitable principle in the administration of justice demands the presence of all persons whom the decree of the court can affect and bind, and these defendants cannot be prejudiced by the application of this principle. the decree grants the injunction demanded against the maintenance and operation of the road of the defendants, and awards damages for the injuries and losses sustained by the owners of the property in the past, these damages must be awarded by the court, as the several rights of persons to the same shall be ascertained, and they will be apportioned to and among those persons accordingly."

If

App. Div.]

SECOND DEPARTMENT, APRIL TERM, 1898.

"It is the constant aim of a court of equity," says Mitford's Chancery Pleadings (p. 163), "to do complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit; to make the performance of the order of the court perfectly safe to those who are compelled to obey it, and to prevent future litigation," and to this end it is necessary not only that all of the plaintiffs should be made parties, but that all of the persons who are to be affected by the judgment should be parties to the single

action.

As was said by the court in the case of Henderson v. N. Y. C. R. R. Co. (78 N. Y. 430): "In the exercise of its equitable jurisdiction the court, or referee acting in its place, may give full relief, having regard to the rights and interests of both parties." Again in the same case the court say: "As to the other question, it was also then held that the right of the plaintiff to come into a court of equity rested upon the fact that the trespass complained of was of a continuous nature, and that he might invoke its restraining power to prevent a multiplicity of suits, and could, of course, recover his damages as incidental to this equitable relief. It would seem, therefore, that the plaintiff should recover in this action all his damages, for, if not, then the apprehended evil would not be averted, and the defendant would be subjected to fresh litigation from day to day, and neither party be better off than if the plaintiff had resorted to the other forum, but as it is, the court has power to do complete justice, and a purpose to render it must have been in the mind of the court upon the first appeal, or its language would have been qualified and not general."

It is urged, however, with much of plausibility, that this rule does not apply to the present case because of the fact that the receiver, who has been made a party defendant, is merely a receiver in the interests of the mortgagees, and that he cannot be charged with the torts of the defendant company committed prior to the time of his appointment as such receiver. It is pointed out, and the proposition is sustained by much of authority, that a receiver in a mortgage foreclosure proceeding is "confined to the care and preservation of the mortgaged property," and that his appointment gives him temporary management of the railroad under the direction of the court, nothing more." (Decker v. Gardner, 124 N. Y. 334.) The

SECOND DEPARTMENT, APRIL TERM, 1898.

[Vol. 29. corporation is not dissolved. "The receiver by virtue of his appointment," say the court in the case of U. S. Trust Co. v. N. Y., W. S. &B. R. Co. (101 N. Y. 478), "takes possession of the mortgaged property, and receives the rents and profits as the officer of the court, but the title to the property is not changed, but remains in the mortgagor until a sale under the decree in the action." It has been held repeatedly that a receiver in a mortgage foreclosure proceeding is not answerable for the torts of the owner of the property, committed prior to his appointment as such receiver, but these cases have no bearing upon the question now before us. The Constitution of this State declares (Art. 1, § 6)," nor shall private property be taken for public use without just compensation." The plaintiffs in this action assert that their property rights in certain real estate in the city of Brooklyn have been taken by the defendants without the payment of just compensation, and this action is brought for the purpose of restraining the defendants from a further use of such property rights without first having paid for the same. The use of this property is essential to the defendants and to the mortgagees; neither of these parties has any right to this property as against these plaintiffs if they are, in fact, the owners of the property; it has been taken from them without the payment of just compensation, and the plaintiff's are entitled, on establishing their rights to the property, to a judgment against any and all persons or corporations who are in possession of their property. In other words, the defendant corporation, owning no title to the property of these plaintiffs, could not have mortgaged it to the mortgagee; he has no better title than the mortgagor, and these plaintiff's have a clear right to reach any and all parties claiming or exercising rights over their property, or to follow it into the hands of the purchasers of the property of the defendant company. Their claim, if it has any existence, is a lien upon the property in whatever hands it may be found, and is superior to all mortgages which the railroad company may have given. As was said in the case of Lynch v. Metropolitan El. R. Co. (129 N. Y. 274): "The action was one purely for a court of equity, for the main relief sought was an injunction against the defendants restraining them from maintaining and operating their elevated railroad. To the assertion of this ground for the equitable interference of the court, the facts in the complaint were

SECOND DEPARTMENT, APRIL TERM, 1898.

App. Div.]

marshalled, and to the necessity for granting that species of relief every allegation of the complaint was framed and calculated to lead. There was but one cause of action stated in this complaint, and that was the claim for relief against the continued trespass upon the complainant's properties. The demand for past damages, included in the prayer for judgment, does not have the effect to set up an independent cause of action. It is nothing more than a demand that the court, having adjudged the plaintiff entitled to the equitable relief prayed for, and having acquired entire jurisdiction of the action, will assess the damages which appear to have been sustained down to the trial." That is the situation in the case at bar; there is but one cause of action set up in the complaint, and that is for an injunction restraining the defendants from using the property of the plaintiffs without the payment of just compensation. The receiver, as the temporary manager of the railroad and as the holder of some part of the assets of the defendant company, is a proper party to this action, and it cannot be assumed that a court of equity in rendering its judgment will fail to discriminate as between the defendants in doing justice to all parties.

The judgment of the Special Term overruling the demurrer, with the modification suggested as to the first ground of the demurrer, is affirmed.

All concurred, except CULLEN, J., not sitting.

Interlocury judgment reversed and judgment directed for defendants on demurrer in each case, without costs, with leave to the plaintiff in action No. 1 to amend the summons by making the other owners of the premises co-plaintiffs, or, in case they decline to become plaintiffs, defendants in the action, and with further leave to serve an amended supplemental complaint within twenty days, without costs, and with leave to the plaintiffs in the other three actions to discontinue said actions, without costs to either party.

SECOND DEPARTMENT, APRIL TERM, 1898.

[Vol. 29.

JOHN JENKINS, Plaintiff, v. THE BROOKLYN HEIGHTS RAILROAD

COMPANY, Defendant.

Railroad-limit of time improperly imposed upon the use of transfer tickets — its acceptance of a ticket not a waiver of any rights-a passenger wrongfully removed may, in an action to recover damages therefor, prove the fact of his arrest, etc.

A rule of a street railway company, required by section 104 of chapter 565 of the Laws of 1890, as amended by chapter 676 of the Laws of 1892, to carry any passenger desiring to make one continuous trip between any two points on the lines controlled by it, for a single fare, which provides that the transfer ticket given to the passenger on alighting from the car on which he began his jour ney for the purpose of enabling him to continue it on another car, shall be void if not used within ten minutes, regardless of whether the condition of the cars which the street railway company supplies during that time is such as to afford him suitable accommodation, is arbitrary and illegal.

The acceptance by a passenger of such a transfer ticket does not modify the original contract of carriage or waive any rights acquired under it.

A passenger who, unable to find accommodation in the cars approaching during the ten minutes, enters a subsequent car and is removed therefrom by the conductor, is entitled, on the trial of an action to recover damages for such removal, to prove the fact of his arrest, his transportation in a patrol wagon and his subsequent discharge from arrest, where such arrest was made upon the order of the conductor, and constituted a part of the act of ejectment, as bearing upon the damages which he is entitled to recover.

MOTION by the plaintiff, John Jenkins, for a new trial made on a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by the direction of the court after a trial at the Kings County Trial Term.

Robert Stewart, for the plaintiff.

Charles A. Collin, for the defendant.

WOODWARD, J.:

This action was brought to recover damages, the plaintiff having been ejected from one of the cars of the defendant company under circumstances which, he contends, entitle him to recover. The action came on at a Trial Term of this court, and, at the conclusion of the defendant's evidence, the court granted the defendant's motion to dis