■ I Concur in the reversal of the judgment herein, but not upon the grounds stated in the prevailing opinion. I agree that the rights of the plaintiffs depend upon their contract, not with the defendant Hodges, but with, the defendant Wheeler. -I do not, however, agree that the intention of the parties was to assign any cause of action which, the plaintiffs had against the defendant, railroad companies for trespass. ' That, if it existed, was a personal action for damages and remained in the grantors. The parties, evidently assumed that the plaintiffs then had a cause of action against the defendant railroad companies for a continuing trespass, in which, as a condition of not énjoining the use and operation of the structure erected in Park avenue and of not compelling its removal, both' rental and fee damages would be required to be paid. I am of opinion that the agreement indicates that the conveyance of the premises was intended to be made upon the basis; of their - depreciated1 value caused by the erection of the structure and by the operation of trains thereon ; and had they framed their agreement properly to carry out that intention, Wheeler would be deemed a trustee for the *191benefit of tiie plaintiffs with respect to any consideration which he might receive from the railroad companies on account of the depreciation in the value of the property by the erection of the structure and operation of trains over the same. The difficulty with the case is, however, that at the time this agreement was made the plaintiffs had no cause of action against these railroad companies, and could not have maintained a suit to enjoin them from maintaining the structure in the street and operating trains thereon. The undisputed evidence shows that the defendant railroad companies had not at this time commenced to operate trains on the structure, and did not until the 16th day of February, 1897. It(is now the settled law of this' class of cases that no cause of action existed against the railroad companies for the erection of the structure, and that no cause of action-accrued against them until they commenced to operate trains on the completed structure. (Lewis v. N. Y. & Harlem R. R. Co., 162 N. Y. 202; Sander v. State of New York, 182 id. 400; Muhlker v, Harlem R. R. Co., 197 U. S. 544.) Since the parties expressly provided in this agreement that the plaintiffs only reserved causes of action against these railroad companies “ accruing to the date ” of the agreement, it cannot be said, since no cause. of action had accrued at that time, that they reserved anything, unless the plain language of their contract is to be disregarded and what may be supposed to have been their intention is to be supplied. Since the parties were so unfortunate as to make such a precise agreement, I think we must leave them where they have placed themselves, and hold that the plaintiffs did not reserve the right to the damages or to the easements, since the cause of action had not accrued at the time of making the agreement.
Judgment reversed and new trial ordered, costs to appellants tc abide event; appeal from order dismissed.'