Newell v. Manhattan Railway Co.
New York Supreme Court
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.”
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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.
1Opinion of the CourtFollett, 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…
2Cases cited8 opinions
- Truscott v. . KingNew York Court of Appeals · 1852
- Town of Mentz v. . CookNew York Court of Appeals · 1888
- Ostrander v. . WeberNew York Court of Appeals · 1889
- Hyatt v. . IngallsNew York Court of Appeals · 1891
- Cox v. . JamesNew York Court of Appeals · 1871
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3Cited by3 opinions
- McCann v. HazardNew York Supreme Court · 1901
- Tripp v. HuntAppellate Division of the Supreme Court of the State of New York · 1899
- Metropolitan El. Ry. Co. v. JohnstonNew York Supreme Court · 1895