It follows, therefore, that the order appealed from should be reversed, with $10 costs and disbursements to the appellant, and the application denied, with $10 costs to the appellant; and, in order to allow a review, the order may state that the denial of the application is upon the law and not in the exercise of discretion. All concur.

(161 App. Div. 165)

DRUCKER v. MANHATTAN RY. CO. et al.

(Supreme Court, Appellate Division, First Department. March 6, 1914.) 1. EASEMENTS (§ 23*)-RESERVATION-EFFECT.

Easements of light, air, and access appurtenant to realty abutting on a public street, being inseparable from the dominant estate, pass to the grantee upon conveyance, notwithstanding the grantor's attempted reservation; and hence the grantor cannot maintain trespass against a railroad company which impairs such easements by reason of his attempted reservation.

[Ed. Note. For other cases, see Easements, Cent. Dig. § 63; Dec. Dig. § 23.*] 2. EASEMENTS (§ 64*)-RIGHTS OF ACTION-GRANTOR AND GRANTEE.

"

Where a grantor of land reserved all rights of action for damages for injuries to the easements of light, air, and access appurtenant to the property conveyed, caused by the construction of an elevated railway, such reservation does not give the grantor any right to maintain an equitable. action against the railroad company; there being no privity of contract or relation between them, and the only action the grantor is entitled to maintain being one to compel his grantee to hold in trust any moneys which he may recover from the railroad company.

[Ed. Note. For other cases, see Easements, Cent. Dig. §§ 132, 133; Dec. Dig. § 64.*]

3. EASEMENTS (§ 23*)-SEVERANCE-RIGHT OF ACTION.

Where a grantor of land reserved all rights of action for injury to the easements of light, air, and access appurtenant to the property granted, caused by the construction of an elevated railroad, thus making his grantee a trustee, and the grantee conveyed the property with full covenants of warranty, the second grantee took the property free from any obligation to perform any personal covenants of the original grantee in relation to the easements, and hence cannot be compelled to sue as trustee for the benefit of the grantor or to release to the railroad company any rights appurtenant to the land.

[Ed. Note. For other cases, see Easements, Cent. Dig. § 63; Dec. Dig. § 23.*]

4. EXECUTORS AND ADMINISTRATORS (§ 39*)-INTEREST IN REAL PROPERTY— EASEMENTS.

Where a grantor of land reserved to himself all rights of action for damages to the easements of light, air, and access caused by the construction of an elevated railroad, the covenant, if of any force, reserved an interest in real property which descended to the heirs at law of the gran tor and not his personal representative.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. 88 280, 285-294; Dec. Dig. § 39.*]

5. EASEMENTS (§ 64*)-SUBSEQUENT STIPULATION.

The owner of land conveyed it reserving unto himself all rights of action for damages to the easements of light, air, and access by the construction of an elevated railroad. His grantor conveyed the property with no reservation. Held, that a stipulation between the second grantee *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

and the railroad company merely providing for payment in case the grantee executed a release in favor of the railroad company did not give the grantor any right of action against the second grantee.

[Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 132, 133; Dec. Dig. 64.*]

6. APPEAL AND ERROR (§ 843*)-QUESTIONS PRESENTED FOR REVIEW.

In an action by a grantor who reserved all rights of action for damages for injuries to the easements of light, air, and access occasioned by the construction of an elevated railway, no question of whether a subsequent grantee can be held as a trustee for any amount received from the railroad company is presented where no amount has been paid.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 33313341; Dec. Dig. § 843.*]

Laughlin and Hotchkiss, JJ., dissenting.

Appeal from Special Term, New York County.

Action by Ephraim Drucker against the Manhattan Railway Company and Esther Grodjinski, now known as Esther Davis, and others, revived in the name of Mary Drucker as executrix upon the death of plaintiff. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, DOWLING, and HOTCHKISS, JJ.

Roger Foster, of New York City, for appellant.

Isaac E. Bermant, of New York City, for respondents.

INGRAHAM, P. J. The nature of the action and subsequent proceedings in it are stated in the opinion of my Brother LAUGHLIN. The plaintiff's testator acquired title to the property abutting on Division street on the 29th of May, 1885, and conveyed the premises by a full covenant warranty deed to Zimmermann on the 1st day of June, 1887. By that conveyance the legal title to the property, including the easements appurtenant to it in Division street, passed to the grantee. On the 29th of May, 1888, Zimmermann conveyed the property to the defendant Davis by a full covenant warranty deed containing no covenant in relation to these easements, and thereby Davis became the owner of the property and the easements appurtenant thereto in Division street. When the plaintiff's testator conveyed this property to Zimmermann, the conveyance contained a clause by which the plaintiff's testator reserved for himself:

"Any and all claims and causes of action against all the world for any and all losses and damages to himself and to the premises above described on account of the construction and the present and future continuance of the elevated railroad structure in Division street and the past and future operation of the same and reserves to himself the easement now occupied and invaded by the said elevated railroad and the operation of the same."

When Davis purchased the property, however, she did not assume the performance of that covenant or consent to such a reservation. Neither Zimmermann nor the grantee, Davis, undertook to prosecute any action to recover any damages sustained by the plaintiff's testator by reason of the construction of the elevated railroad in Division street, nor did they agree to pay to the plaintiff's testator any amount that *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

they should receive as compensation for the encroachment by the railroad company upon the easements appurtenant to the premises. No obligation rested upon Davis to either pay to the plaintiff's testator any damages that she should recover, nor to constitute herself a trustee for the plaintiff's testator in relation to such damages or compensation for a conveyance of the easements. What the plaintiff's testator sought to do was to sever the easements from the property to which they were appurtenant and retain title to such easements notwithstanding his conveyance of the property to which they were appurtenant. If the conveyance was ineffective for such a purpose, I cannot see that the plaintiff's testator had any right in an action in equity to restrain. the railroad company from continuing the trespass, for in such a case the easements would have vested in the plaintiff's testator's grantee, and such grantee only could sue for a future trespass upon the easements or apply to a court of equity to restrain a continuing trespass.

The plaintiff's testator having thus parted with title to the property, he commenced an action against the defendant on the 22d of November, 1888, after the conveyance by Zimmermann to the defendant Davis. Before this action came on for trial and on the 21st of July, 1910, the plaintiff's testator died, and on May 22, 1911, the action was revived, and the plaintiff as his executrix was substituted as the plaintiff in the action.

[1, 2] The first question presented is whether the plaintiff's testator ever had a cause of action to restrain the continuing trespass of the defendant and that would depend upon the question of whether or not the covenant in the deed of the plaintiff's testator to Zimmermann was effective to reserve to the plaintiff's testator any title to or interest in the easements appurtenant to the property that was conveyed to Zimmermann. It is conceded, as I understand it, that the covenants in the deed conveying the property from the plaintiff's testator to Zimmermann was ineffective for such a purpose, and that seems to be the settled law of this state. See McKenna v. Brooklyn El. R. Co., 184 N. Y. 391, 77 N. E. 615; Western Union Tel. Co. v. Shepard, 169 N. Y. 170, 62 N. E. 154, 58 L. R. A. 115. In McKenna v. Brooklyn El. R. Co., supra, Judge Werner, in delivering the opinion of the court, said:

"Easements of light, air, and access, appurtenant to real property abutting upon a public street or highway, are inseparable from the dominant estate, and upon a conveyance of the latter such easements pass to the grantee, notwithstanding the grantor's attempted reservation of the same, or of any rights of action for the invasion or destruction thereof."

And it was further held that the only person who could sue for damages thus caused or could execute a release in satisfaction thereof was the owner of the premises as to which such easements were appurtenant, and a person or corporation invading or destroying such easements has the right to obtain a release from the owner of the dominant estate who alone is legally entitled to the resulting damage. If notwithstanding this reservation in the deed from the plaintiff's testator to Zimmermann the title to the easements and the right to enforce a trespass thereon passed to Zimmermann, then it would seem to fol

low that the plaintiff could not maintain an action to either enjoin a continuing trespass or to recover damages for any trespass by the railroad company after the execution and delivery of the conveyance; and, as this action was commenced after the execution and delivery of this deed, it would seem to follow that the plaintiff had no cause of action. I think it further settled that the plaintiff's testator could not at that time have commenced any action against the railroad company. In McKenna v. Brooklyn El. R. Co., supra, Judge Werner also said: "There is absolutely no privity of contract or relation between them. The plaintiff's equitable remedy is against her grantee alone, who is impressed into the relation of trustee as to the fund, merely to prevent such wrongs and hardships as might be inseparable from an inadequate legal remedy."

See, also, Pegram v. N. Y. El. R. Co., 147 N. Y. 135, 41 N. E. 424. [3] It is quite probable that the plaintiff had a cause of action to recover for the damages which had accrued up to the time of the conveyance, but that was a cause of action against the railroad company as a trespasser and in which neither the plaintiff's testator's grantee nor Zimmermann's grantee were at all interested. We may assume that by virtue of the attempted reservation a resulting trust was created. by virtue of which Zimmermann, the grantee, became a trustee for his grantor as to all moneys received by him or which he should recover for the invasion or destruction of such easements; but Zimmermann never attempted to enforce any such claim against the railroad company, and, when he conveyed the property to the defendant Davis, he, by a full covenant warranty deed, conveyed the property absolutely free and clear of any engagement with the plaintiff's testator, and whatever obligation existed was not assumed by Davis. Davis thereby became the owner of the property which included the easements in Division street and, as I understand the authorities, took it free from any obligation to perform any personal covenants of Zimmermann in relation to these easements. Davis never undertook to act as trustee for the plaintiff's testator; never obligated herself to sue to enforce the plaintiff's testator's right to any damage sustained in consequence of the destruction or impairment of the easements; and certainly never undertook to execute and convey to the railroad company a release or conveyance of her interest in the street which had been appropriated or affected by the construction or operation of the railroad. As before stated, neither Zimmermann nor Davis ever attempted to recover the damages sustained by the appropriation of the easements, and neither have received from the railroad company or from anybody else any sum of money on account of the construction or operation of this railroad in the street. There is nothing, therefore, to which a resulting trust could apply. Certainly the railroad company could not be compelled to pay to the plaintiff or any one else any sum of money either for damages sustained by the abutting property after the plaintiff's testator conveyed it or as a condition for executing a conveyance of the interest in the street which was appurtenant to the abutting property without a release or conveyance from the owner of the fee of the abutting property. It is clear that the defendant Davis has never obligated herself to grant such a release or conveyance, and the

court could not by decree compel her to make such a release or conveyance, so neither at the time the action was commenced nor at any time since could the court give to the plaintiff any relief either as against the railroad company or as against the defendant Davis.

[4] Nor do I think that whatever cause of action or right the plaintiff's testator had passed to his executrix upon his death. If this covenant in the deed to Zimmermann had any force at all, it was an interest in real property that would descend to the devisees or heirs at law of the plaintiff's testator. It might be that as between the plaintiff's testator and Zimmermann an attempt to enforce this trust would be in the nature of a chose in action which would pass to the personal representatives of the deceased; but as no trust existed as between the plaintiff's testator and Davis, who had acquired absolute title to the property prior to the commencement of the action, I cannot see that there would be any cause of action existing against either the railroad company or Davis that could pass to the personal representatives of the deceased.

[5] The fact that there had been a stipulation entered into between the railroad company and Davis cannot help the plaintiff. There was nothing in that stipulation which bound the railroad company to pay Davis anything. It was conditioned upon Davis executing a release or conveyance which she has not done and which she is not bound to do and which this court cannot compel her to execute. Maurer v. Friedman, 197 N. Y. 248, 90 N. E. 814; Miller v. Clary, 210 N. Y. 127, 103 N. E. 1114, decided December 30, 1913. Such a stipulation, made long after the action was commenced, cannot given to the plaintiff any right either to recover the amount specified in that stipulation or to charge the defendant Davis as trustee for such an amount.

[6] Nor is the question as to whether or not Davis could be held as trustee for any amounts that she received from the railroad company presented in this action, as no action to impress such a trust could be commenced until Davis had either received the amount from the railroad company for the impairment of the easements, or had obtained a judgment or attempted to enforce such a claim against the railroad company. Such an action could only be commenced after such a trust fund had come into the possession of Davis to which a trust could attach.

Entertaining these views, therefore, I think the court was clearly right in dismissing the complaint as against the defendant Davis, and the judgment appealed from should therefore be affirmed.

MCLAUGHLIN and DOWLING, JJ., concur.

LAUGHLIN, J. (dissenting). This action is, in effect, one to enjoin the operation of the elevated railway on account of its trespassing upon the easements of light, air, and access appurtenant to the premises known as Nos. 29 and 291⁄2 Division street in the borough of Manhattan, New York, and for judgment against the corporate defendants for the accrued damages for depreciation and rental value of the premises, or in the alternative for such damages and the damages to the fee for the permanent appropriation of the easements.