Citations
- 132 A.D. 183
Full opinion text
McLaughlin, J.:
On the 19th of December, 1896, the plaintiffs wei-e the ^owners of certain real estate situate on Park avenue in the city df Hew York, and on that day entered into a written contract to. convey the same, in exchange for other property, to one Hodges. The contract contained the following provision : “ And whereas! in this exchange df property that agreed to be conveyed by the parties of the second part [the plaintiffs in this action] is valued by both parties hereto at a less sum than it otherwise would bé valued at by reason of a certain structure recently erected by the New York Central and Hudson River Railroad Company in front of said buildings, it is further agreed by both parties hereto that any and all claim or claims and rights of action for damage or depreciation of said buildings by reason of such structure shall be and remain with and the property of the party of the second part, irrespective of in whose name any action may be brought to recover such damage, and the party of the first part [Hodges] will execute such further proper instrument as the parties of the second part may be advised is necessary to confirm such property and rights in the said parties of the second part.” Hodges, on the twenty-ninth of December, assigned his interest in the contract to the defendant Wheeler. Two days later the plaintiffs conveyed the real estate in question to Wheeler and .simultaneously with the execution and delivery of the deed of conveyance Wheeler, as party of the first part, and they as parties of the second part, entered into an agreement which, after reciting the conveyance and that Anderson and Dowling claimed a cause of action against the New York Central and Hudson River Railroad Company and the New York and Harlem Railroad Company “ for damages to said houses and property by reason of the elevation of the tracks of said companies upon Park Avenue in front of said houses ” and that it was not the intention of either of the parties “ that said cause of action should pass ” to Wheeler by the conveyance, but that the same should be and remain the property of Anderson and Dowling, provided as follows: “ Now, in consideration of the premises and of one dollar to the party of the first part in hand paid, the receipt whereof is acknowledged, it is hereby covenanted and agreed by and between the parties hereto that the aforesaid cause of action does not pass by said conveyance, but remains the property of the parties of the second part hereto, and the party of the first part hereby assigns, transfers and sets over to the parties of the second part, their heirs, executors, administrators, and assigns all his right, title and interest in any cause of action against the said railroad companies, or either of them, by reason ,of their aforesaid elevation of said tracks in front of said houses, or the running of engines and trains thereon or connected in any way therewith, accruing to the daté hereof.” ¡Subsequently these plaintiffs, through the Court of Claims, collected from the State of Hew York the damages to the premises in question up to the time of the conveyance to Wheeler. In April, 1906, they 'brought this action. The complaint, among other things, alleged that the construction, maintenance and operation of the railroad structure in front off said premises Were illegal; that the owners had never consented thereto ; and by reason of the. impairment of the easements ■ appurtenant to the premises the same had been damaged to the amount- of $10,000 '; that the plaintiffs had requested Wheeler to bring an action as trustee for their benefit, or to become a plaintiff with them in this action, to recover such damage, which he had refused to do, but instead was proposing to settle with the railroad companies the claim for said damage and to convey certain easements to them for an inadequate consideration, with' the intent — he himself being without pecuniary responsibility -¡— of applying said consideration to his own use, in violation of the'aforesaid reservation and in fraud of the rights