Appeal from Supreme Court, Appellate Division, First Department.

Action by Abbott P. Brush against the New York, New Haven & Hartford Railroad Company and the City of New York. From a judgment of the Appellate Division (162 App. Div. 731, 148 N. Y. Supp. 195), entered on the 17th day of July, 1914, affirming a judgment rendered at a Special Term of the Supreme Court in New York county, requiring the defendant railroad company to remove a bridge and the approaches thereto over its tracks at Baychester avenue in the city of New York, or to pay $700 damages to the plaintiff, defendants appeal. Modified and affirmed.

The opening of Baychester avenue across the railroad line was therefore the opening of a new street or new portion of a street; and this fact brought the case within the express terms of section 61 of the Railroad Law (Laws 1890, c. 565, amended by Laws 1898, c. 520), which provides:

"When a new street, avenue or highway, or new portion of a street, avenue or highway shall hereafter be constructed across a steam surface railroad, * such street, avenue or highway or portion of such street, avenue or highway, shall pass over or under such railroad or at grade as the board of railroad commissioners shall direct."

This section, as we construe it, applies only to cases where the street is new or the portion which crosses the steam surface railRobert L. Luce, of New York City, for ap-road is new. Hence it had no application to pellant railroad company. Lamar Hardy, Corp. Counsel (Charles J. Nehrbas, of New York City, of counsel), for appellant city of New York. Ralph E. Brush, of New York City, for respondent.

the change of grade which was considered in McCabe v. City of New York, 213 N. Y. 468, 107 N. E. 1049, inasmuch as the structures which were therein assailed were not in a new street or new portion of an old street, but were in Thomson avenue, a street 100 feet wide, leading from Long Island City out into Queens county which had been used as a public highway for many years.

WILLARD BARTLETT, C. J. [1] This controversy arises over the construction of a bridge (and the approaches thereto) which carries Baychester avenue over the railroad The learned counsel for the city of New line of the Harlem River & Port Chester York contends that the construction of the Railroad Company (now leased to the New bridge approach in the case at bar constiYork, New Haven & Hartford Railroad Com-tuted an original grading at Baychester avepany) near Pelham Bay Park in the borough nue; but whether this be so or not, it cerof the Bronx. The plaintiff owns lands tainly constituted the opening of a new porabutting on Baychester avenue, and the erection of Baychester avenue which was to be tion of the bridge and its approaches has partly deprived him of the beneficial use and enjoyment of his easements of light and air in and over the avenue, and has interfered with convenient access to his premises, thus lessening the value thereof. The courts below have held that the erection of the bridge and its approaches was an unlawful obstruction of the highway because the requirements of section 61 of the Railroad Law, now section 90 of the present Railroad Law (Laws 1910, c. 481, constituting Cons. Laws, c. 49, 8 90, as amended by Laws 1913, c. 744), were not complied with, in that the consent of the board of railroad commissioners to the erection of the bridge was neither sought nor obtained. The court at Special Term found that the construction of the approaches to the bridge had impaired the value of the plaintiff's abutting land in the sum of $700, and the judgment restrains the defendant railroad company from continuing to maintain or use the bridge unless it pays the damages thus assessed. Prior to the construction of the bridge Baychester avenue, or Main avenue as it was formerly called, did not cross the railroad line; and it appears to be conceded by all parties that there was no right of way at this point across the property of the road. Indeed, the trial court expressly found that the railroad

"has always, down to the acquisition of Baychester avenue by the city, maintained gates at the northern side of its property across Baychester avenue which gates had locks thereon."

constructed across a steam surface railroad, and this fact made it incumbent upon the authorities under section 61 of the Railroad Law to apply to the board of railroad commissioners upon notice to the neighboring landowners to determine whether Baychester avenue should pass over or under the railroad or at grade. Matter of City of New York (West 134th Street), 204 N. Y. 465, 97 N. E. 862. The omission to take the steps prescribed by the statute in this respect rendered the opening of this new portion of Baychester avenue unlawful; and, as the construction of the bridge and its approaches was an integral part of such opening, their erection was also unlawful. It matters not that the railroad company and the municipal authorities had come to an agreement between themselves as to the manner in which the new portion of Baychester avenue should be opened and the crossing effected. They could not substitute their determination for that of the official body to whom the law had committed the decision of all questions as to the manner or method of carrying a new portion of a street across a steam surface rail

road.

Under these circumstances we think that

the courts below were right in holding that the unlawful erection of the bridge and its approaches gave the plaintiff a right of action on account of resulting injury to the easement appurtenant to his property.

[2] The form of the judgment, however, is

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1109; Dec. Dig. 594.]

3. JUDGMENT 956(1)-PLEA OF RES JUDICATA-BURDEN OF PROOF.

incorrect. It should provide, not for the 1896, defendant purported to cancel such conelimination of the overhead crossing in the tract, and in October of that year the parties event of the nonpayment of plaintiff's dam-ant's claim of the right to annul the former entered into a new contract reciting the defendages, but only for its elimination if it is not contract, and that plaintiff insisted that it had now or is not hereafter made satisfactory to no such right, and providing that all insurance the public service commission, which has suc- written up to the later date should be subject to the former contract, but that such contract, ceeded to the functions of the board of rail- except as to renewals written up to and includroad commissioners. All parties would suf- ing September, 1896, was wholly canceled. In fer if the bridge were taken down, leaving a April, 1897, plaintiff, after his discharge, sued gap in the street over the railroad tracks. for breach of the latter contract, and recovered a judgment which was paid. Held, that such What must be done is to comply with the re-judgment was no bar to his right to recover unquirements of the statute by carrying the der the former contract, since the right to sue street over the railroad in a manner which for commissions due under the former contract the public service commission shall approve. the latter contract; each claim being single and was independent of the right to sue for breach of It is only because the approval of that body indivisible. (or its predecessor, the board of railroad commissioners) has not been procured that the structure is unlawful and its erection has entitled the plaintiff to damages. The authorities should be afforded an opportunity to make it lawful by obtaining the approval of the commission to the crossing as it now exists, or as it may decide that the crossing shall be changed. To this end the judgment should be modified so as to enjoin the defendant from maintaining the bridge which carries Baychester avenue across the defendant's railroad unless and until the said bridge and its approaches in their present or some modified form shall receive the sanction of the public service commission, signified by a determination made under section 90 of the existing Railroad Law; and, in order to permit the city of New York to obtain such determination, the operation of the injunction should be suspended for 90 days. In all other respects, the judgment should be affirmed, with costs.

CHASE, COLLIN, HOGAN, CARDOZO, and SEABURY, JJ., concur. HISCOCK, J., not sitting.

Judgment accordingly.

(218 N. Y. 228)

TOWNSLEY v. NIAGARA LIFE INS. CO. (Court of Appeals of New York. May 9, 1916.) 1. ACTION 53(1) SPLITTING CAUSES OF

ACTION-CONTRACT.

The law, to prevent vexatious or oppressive litigation, forbids the splitting up of one single or entire cause of action into parts, and the bringing of separate actions for each; there can be but one action for a single breach of contract.

ly that the cause of action was litigated and deIn such case the burden of showing cleartermined in the former action was upon the defendant.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1822; Dec. Dig. 956(1).] Chase, Cuddeback, and Cardozo, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Henry P. Townsley against the Niagara Life Insurance Company. From a judgment of the Appellate Division (160 App. Div. 177, 145 N. Y. Supp. 209) affirming a judgment of Trial Term entered upon a verdict directed by the court in favor of the defendant, plaintiff appeals. Reversed, and a new trial granted.

H. N. Selvage, of New York City, for appellant. Gilbert E. Roe, of New York City, for respondent.

POUND, J. The question is whether this action is barred by a former judgment. The defendant was originally the Bank Clerks' Mutual Benefit Association of the city of New York. In June, 1894, its name was changed to Bankers' Life Insurance Company of the city of New York, and in September, 1911, its name was again changed to Niagara Life Insurance Company. The action is brought to recover a percentage of renewal premiums on life insurance policies issued by the defendant under the management of the plaintiff, and is based on a contract dated July 20, 1893, between the Bank Clerks' Mutual Benefit Association and the plaintiff whereby plaintiff was employed as general manager to solicit new insurance "during the faithful perform2. JUDGMENT 594-RES JUDICATA-SINGLE ance of his duties unless sooner CAUSE OF ACTION-BREACH OF CONTRACT. terminated by mutual consent." He was enDefendant insurance company in 1893 em- titled to commissions on renewals on the 31st ployed plaintiff as a general manager under a contract entitling him to commissions, to remain of December in each year while the contract in force during plaintiff's faithful performance was in force based on the business obtained of his duties, but terminable at the will of ei- by him then in force. It was further providther party, and which provided that, if other-ed that, "should this contract be terminated wise terminated, plaintiff should be paid renewal commissions on all outstanding insurance otherwise than by mutual consent, then the during the following ten years. In August, renewal commissions aforesaid on all the in

[Ed. Note.-For other cases, see Action, Cent. Dig. 88 549-551, 553-562, 565; Dec. Dig. 53(1).]

*

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

surance established at the date of said termi- abrogation of that contract; that he has renation shall be payable as aforesaid during the next ten years following said termination, at which time all his interest therein shall cease."

he brought an action against defendant to recover damages for a wrongful discharge, and on June 9, 1903, he recovered judgment therein for $10,821, which has been paid. This action was brought on December 29, 1910, to recover on the first contract for commissions for the years 1903-06, on renewals of policies which had been written up to and including September 30, 1896, based on the insurance which was still in force at the end of each year respectively. The courts below have held that the judgment in the first action was a bar to this action; that the contract of 1893 was entirely abrogated; that The burden of showing clearly that this the only right of plaintiff was to recover un- cause of action was litigated and determined der the contract of 1896 damages for the in the former action was upon defendant

not properly be restrained from obstructing in
of the beach between high and low water mark,
any manner public passage over any portion
since that might prevent his constructing piers.
[Ed. Note.-For other cases, see Navigable
Waters, Cent. Dig. §§ 259, 265; Dec. Dig.
43(4).]

4. APPEAL AND ERROR 1094(2) — JURISDICTION-EFFECT OF DIVIDED COURT.

(Griffen v. Keese, 187 N. Y. 454, 80 N. E. 367; [ incident to his enjoyment of the uplands, canRudd v. Cornell, 171 N. Y. 114, 63 N. E 323), and it has not sustained the burden. It has wholly failed to prove that the question in this case-i. e., the defendant's liability as to all insurance written by it up to and including September 30, 1896 was material and necessary to the decision in the former case and was actually decided therein and included in and made a part of the final judgment. Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195. On the contrary, on an appeal from the judgment in the former case (Townsley v. Bankers' Life Ins. Co., 56 App. Div. 232, 234, 67 N. Y. Supp. 664), the court says:

"This action was brought to recover the damages sustained by the plaintiff in consequence of the abrogation of the contract (dated October 1, 1896) by the defendant."

The abrogation of that contract did not terminate plaintiff's right to renewal commissions. As it does not appear that plaintiff did litigate the issue in this action in the former action, and as he was not bound to do so, this action is not barred by the judgment in the former action.

The judgment and order should be reversed, and a new trial granted, with costs to

abide the event.

WILLARD BARTLETT, C. J., and HISCOCK and COLLIN, JJ., concur. CHASE, CUDDEBACK, and CARDOZO, JJ., dissent.

Judgment reversed, etc.

(218 N. Y. 91)

BARNES et al. v. MIDLAND RAILROAD
TERMINAL CO.

(Court of Appeals of New York. May 2, 1916.)
1. NAVIGABLE WATERS 43(4)-LITTORAL
RIGHTS ACCESS-FREE AND SUBSTANTIALLY
UNOBSTRUCTED.

The right of access of a riparian owner exercised by construction of a pier over land between high and low water mark cannot be burdened by restraining him from obstructing passage of the public "under or over" the pier, where passage over it would impair the owner's use; but the passage under it must be free and substantially unobstructed over the entire foreshore, so that people may walk under at low tide or pass under in boats at high tide.

[Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 259, 265; Dec. Dig. 43(4).]

43(1)-LITTORAL
OBSTRUC-

2. NAVIGABLE WATERS
RIGHTS PIERS UNNECESSARY
TIONS.

Interference with the public right of passage between high and low water mark must be limited by necessity, and a pier constructed by the riparian owner over such land is an unnecessary obstruction unless there is free passage under it over the entire foreshore.

[Ed. Note.-For other cases, see Navigable Waters, Cent. Dig. §§ 256, 260, 261, 263, 265; Dec. Dig. 43(1).]

3. NAVIGABLE WATERS 43(4)-LITTORAL RIGHTS.

The riparian owner, being entitled to access to the waters by means of a pier, as an

The Court of Appeals has jurisdiction to pass on the question whether it was proved that a boulevard was a public highway, where the Appellate Division was not unanimous in affirming the judgment containing a finding on such question.

[Ed. Note.-For other cases, see Appeal and
Error, Cent. Dig. §§ 4324, 4344; Dec. Dig.
1094(2).]

5. HIGHWAYS 79(2, 3)—ABANDONMENT.
Under Highway Law (Consol. Laws, c. 25)
§ 234, providing that all highways that have
ceased to be traveled or used as highways for
six years shall cease to be highways for any
six years, although the closing of the highway
purpose, the public right is extinguished after
by an individual may have been a wrongful act.
[Ed. Note.-For other cases, see Highways,
Cent. Dig. § 281; Dec. Dig. 79(2, 3).]
6. HIGHWAYS

STRUCTIONS.

79(5)-ABANDONMENT-OB

Obstructions of a highway across part of line of travel, are not sufficient, however long its width only, narrowing but not closing the continued, to put an end to its existence.

[Ed. Note.-For other cases, see Highways, Cent. Dig. § 284; Dec. Dig. 79(5).] 7. HIGHWAYS STRUCTIONS.

79(5)-ABANDONMENT-OB

FEE IN PUBLIC.
The rules as to abandonment of a high-
way by nonuser for six years under Highway
Law, § 234, do not apply when the fee to the
way is in the public.

Cent. Dig. § 281; Dec. Dig. 79(2, 3).]
[Ed. Note.-For other cases, see Highways,
9. HIGHWAYS

DENCE.

79(5)—ABANDONMENT-EVI

Where defendant for more than six years had obstructed a public highway with its buildings, some of which entirely blocked it, and others only encroached upon it, and the plaintiffs and public authorities acquiesced in such obstructions, which prevented use of the highway in certain places, the highway was abandoned under Highway Law, § 234, as to the portions entirely obstructed, but still existed as to other portions.

[Ed. Note.-For other cases, see Highways, Cent. Dig. § 284; Dec. Dig. 10. HIGHWAYS

79(7)

79(5).] OBSTRUCTION

RIGHT TO DAMAGES. Since the obstruction of a highway by placing buildings thereon does not under Highway Law. § 234, become lawful until after six years, modification of an injunction improperly restraining defendant's use after six years does not prejudice plaintiff's right to damages accruing before that time.

[Ed. Note. For other cases, see Highways, Dec. Dig. 79(7).]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

11. PARTIES ОВЈЕСТ.

88(1)—MISJOINDER-RIGHT TO | though section 1022 requires the report to award or deny costs if they are within the discretion of the court, since such section contemplates an award on all the issues which would not be set tled until final judgment.

Defendant cannot complain of a gross award of damages to all the plaintiffs, where they held all the interests affected by his wrongful acts, if he failed to object on the ground of misjoinder, since he cannot be concerned in the division made, although the referee might have apportioned damages to individual plaintiffs. [Ed. Note.-For other cases, see Parties, Cent. Dig. § 145; Dec. Dig. 88(1).] 12. DAMAGES 40(1)—MEASURE OF DAMAGES -OBSTRUCTION OF HIGHWAY - Loss OF PROFITS.

Loss of profits resulting from the nuisance of obstructing a highway by buildings and piers is an element to be considered in estimating damages.

[Ed. Note.-For other cases, see Damages, Cent. Dig. 88 72, 73, 87; Dec. Dig. 40(1).] 101(4) — ASSESSMENT

OF

13. REFERENCE
DAMAGES-EFFECT.
Where the referee based his award of dam-
ages for obstruction of a highway on several
elements and obstructions, some of which were
lawful during part of the period, some unlaw-
ful, and some lawful at all times, and gave a
gross award, the damages must be reassessed,
since it could not be said whether they were
assessed for the lawful or unlawful acts.

[Ed. Note. For other cases, see Reference, Cent. Dig. §§ 173-177; Dec. Dig. 101(4).] 14. APPEAL AND ERROR 1094(3)-SCOPE or

REVIEW.

Notwithstanding unanimous affirmance of a judgment by the Appellate Division, the Court of Appeals has the right to look into the evidence to ascertain whether error in assessment of damages upon a wrong basis should be disregarded as immaterial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4341, 4342, 4344-4348; Dec. Dig. 1094(3).]

15. REFERENCE 73-PROCEEDINGS-ASCERTAINMENT OF DAMAGES.

Where plaintiff's right to injunction and to damages on account of defendant's obstruction of a highway were in controversy, the referee should not have granted the injunction and directed another reference to determine damages, but the entire matter should have been disposed of at once.

[Ed. Note. For other cases, see Reference, Cent. Dig. § 107; Dec. Dig. 73.]

16. HIGHWAYS 200-OBSTRUCTION-RIGHT TO ACCOUNTING-TORTIOUS ACTS.

One who obstructs a highway and causes damage to another in his business is under no duty to render an accounting to the injured par

ty.

[Ed. Note. For other cases, see Highways, Cent. Dig. § 509; Dec. Dig. 200.] 17. APPEAL AND ERROR

VIEW-WAIVER OF ERRORS.

883-SCOPE OF RE

[Ed. Note.-For other cases, see Costs, Cent Dig. §§ 21, 25; Dec. Dig. 13.] 19. APPEAL AND ERROR 984(1)—ScoPE OF REVIEW-DISCRETIONARY ORDERS.

The Court of Appeals cannot direct the exercise of the discretionary power of the trial court in awarding costs.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3881, 3883-3885, 3887; Dec. Dig. 984(1); Costs, Cent. Dig. § 327.] 20. COSTS 13-ALLOWANCE-ELEMENTS. A court of equity gives weight at times to partial failure of the action in determining no invariable formula for their award. the incidence of the costs, although there is

[Ed. Note.-For other cases, see Costs, Cent. Dig. §§ 21, 25; Dec. Dig. 13.]

Cross-appeals from Supreme Court, Appellate Division, Second Department.

Action by Sarah H. Barnes and others against the Midland Railroad Terminal Company. From a judgment of the Appellate DiVision (161 App. Div. 621, 146 N. Y. Supp. 1033) modifying and affirming final judgment for plaintiffs, all parties appeal, with notice of intention to bring up for review the affirmance by the Appellate Division (147 App. Div. S9, 131 N. Y. Supp. 750) of an interlocutory judgment. Final judgment reversed, and interlocutory judgment affirmed conditionally.

John Brooks Leavitt, of New York City, for plaintiffs. Alton B. Parker and Alfred G. Reeves, both of New York City, for defendant.

CARDOZO, J. The action is brought to restrain the continuance of a nuisance and for the recovery of damages. The nuisance complained of is the obstruction of part of the foreshore of Staten Island, and of the Sea Side Boulevard, which is said to be a highway running along the uplands. The case was before this court on an earlier appeal. Barnes v. Midland R. R. Terminal Co., 193 N. Y. 378, 85 N. E. 1093, 127 Am. St. Rep. 962. In an opinion by Judge Werner, we defined the relative rights of the littoral owner on the one hand and the public on the othWe held that the littoral owner has the

er.

right to construct a pier in order to provide a means of passage from the upland to the Error in subdividing the trial so as to re- sea, that the public must submit to any necquire a separate reference for the award of dam-essary interference with their right of pasages must be disregarded on appeal, where neither party complained of it at any step of the litigation.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3611; Dec. Dig. 883.] 18. COSTS 13-ALLOWANCE-TIME-INTER

LOCUTORY ORDER. Where a referee granted the injunction prayed for by plaintiff, with costs to be determined later, and directed another reference to ascertain damages, the costs could be awarded on final judgment under Code Civ. Proc. § 3230, authorizing award in the final judgment, al

sage over the foreshore, but that unnecessary obstruction is an invasion of the public right. A new trial followed. The referee granted an interlocutory judgment restraining the defendant from obstructing the passage of the public between high and low water mark in front of the defendant's uplands, restraining the obstruction of the Sea Side Boulevard, and directing a further reference to ascertain the damages. The interlocutory judgment was affirmed at the Appellate Division.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes