Opinion
April 9, 1937.
Appeal from Supreme Court of Queens County.
Trabue Carswell, for the appellant.
Frank R. Rubel, for the respondent.
The action is to restrain maintenance and operation of defendant's railroad in front of plaintiff's premises and to compel its removal unless the defendant pay damages sustained by plaintiff as a result of its construction, maintenance and operation. The defendant appeals from an order denying its motion to dismiss the amended complaint on the grounds that the court has not jurisdiction of the subject-matter of the action, that the complaint does not state facts sufficient to constitute a cause of action, and that the cause of action did not accrue within the time limited by law for the commencement of an action thereon.
The complaint states a good cause of action. The conditional consent of the plaintiff's prior grantors reserved the right to compensation. ( Kornder v. Kings County Elevated R. Co., 41 App. Div. 357; Bon v. Kings County Elevated R. Co., 46 id. 626; Kingsland v. Kings County Elevated R. Co., 83 Hun, 151.) The conveyance to the plaintiff ipso facto carried with it the right to compensation. ( Pappenheim v. M.E.R. Co., 128 N.Y. 436. ) The injury to plaintiff's premises being continuous, section 53 of the Civil Practice Act has no application. ( Galway v. M.E.R. Co., 128 N.Y. 132.) The defendant's original possession being permissive, no right by prescription has been acquired. ( Lewis v. New York Harlem R.R. Co., 162 N.Y. 202.)
The order should be affirmed, with ten dollars costs and disbursements.
LAZANSKY, P.J., HAGARTY, CARSWELL, ADEL and CLOSE, JJ., concur.
Order denying motion to dismiss amended complaint affirmed, with ten dollars costs and disbursements, with leave to defendant to answer within ten days from the entry of the order hereon.