success. Supreme Court, March, 1899. [Vol. 27 She then brought this action appealing to the equity powers of the court to enforce her rights." In this case the court attached in the hands of trustees within this state funds in excess of the legitimate needs of the defendant to satisfy the judgment for alimony secured in the original action between the same parties. According to the theory of the defendant in the action at bar the plaintiff was estopped by the judgment, but the courts did not understand the doctrine in that light, and the plaintiff was allowed to recover. In National T. Bank v. Wetmore, supra, the court say: "The action certainly could not, as a creditor's bill, under the statute, be maintained, because recovery of a judgment and the return unsatisfied of an execution issued upon it, are essential prerequisites for that purpose. * * * And it is founded on the doctrine that a court of equity will not take cognizance of a controversy which can be determined at law, and not until the remedy there is exhausted. Such has quite uniformly been the rule of the common law applicable to equitable jurisdictions." In Gardner v. Village of Newburgh, 2 Johns. Ch. 155, the court say: "There is no need, from what at present appears, of sending the plaintiff to law to have his title first established." This was a case demanding a mandatory injunction, and the court add: "A right to a stream of water is as sacred as a right to the soil over which it flows. It is a part of the freehold of which no man can be disseized but by lawful judgment of his peers, or by due process of law.' This is an ancient and fundamental maxim of common right to be found in Magna Charta, and which the legislature has incorporated into an act declaratory of the rights of the citizens of this state." In the case of Livingston v. Livingston, 6 Johns. Ch. 500, the court granted an injunction to quiet title where there had been one action of law, in which the claim of the defendant to estovers in the lands of the plaintiff has received a decision against him, and there is another suit at law still depending, in which the same. question arises." In the case of Troy & Boston R. R. Co. v. B., H. T. & W. Ry. Co., 86 N. Y. 107, 128, the court refused an injunction on the ground that there was no multiplicity of suits threatened, and then adds; "Against whom will the suits be required? If against the defendant, it will be time to urge that plea when by one action the plaintiff's legal right shall have been established, and its adversary still offends. For aught that now appears, one action 66 at law will suffice." It seems clear then, upon reason and authority, that the judgment in the previous action is not a bar to the present action for a Misc.] Supreme Court, March, 1899. remedy which shall be adequate. It is not necessary to consider at any length the discussion of the election of the plaintiffs. The doctrine of estoppel by election simply relates to inconsistent rights; no man is allowed to bring an action and assert one right, and, when defeated, to bring a new action for the same matter, asserting an inconsistent right. Herman's Law of Estoppel, § 475. This has no relation to an action which is brought merely for the purpose of securing a remedy where the original judgment falls short of the relief to which the plaintiff is in justice entitled. Nor is this court called upon to give exhaustive discussion to the suggestion of the defendant, that "He who seeks equity, must do equity." The defendant, it is admitted, is a wrongdoer; she has trespassed upon the premises of the plaintiffs, and the encroachment is a nuisance. Until that nuisance is abated the defendant can gain no equitable rights as against these plaintiffs. The right of property in the plaintiffs is absolute, and the mere fact that the defendant has offered to pay them for the property a sum of money does not give her any standing in the matter. The plaintiffs do not want to sell, and we know of no process by which they can be compelled to dispose of any part of their possessions to a private individual. "Where an injunction is asked in support of a strict legal right, the party is entitled to it if his legal right is established; mere delay and acquiescence will not, therefore, defeat the remedy, unless it has continued so long as to defeat the right itself." Pomeroy's Equity Jurisprudence, § 817; Eno v. Christ, 25 Misc. Rep. 24; 54 N. Y. Supp. 400. In Pappenheim v. Met. El. R. Co., 128 N. Y. 436, 445, the court in discussing the question of injunctions, says: "But it is enough to say that, in the cases where permanent damage is to be paid, there is a condition that a conveyance shall be made, and the defendant thus secures title to the property used. In cases where the owner wishes to actually stop the further trespass and where the defendant has no legal right to acquire the property, such condition would not be inserted, and an injunction would issue upon the right of the owner being determined." Henderson v. Central Railroad Co., 78 N. Y. 423. See, also, 51 N. E. Repr. 292. The plaintiffs are clearly entitled to a mandatory injunction, restraining the defendant from longer maintaining the nuisance complained of, and to the costs of this action. Ordered accordingly. Supreme Court, March, 1899. [Vol. 27. EDWARD H. LITCHFIELD, Plaintiff, v. THE INTERNATIONAL PAPER COMPANY et al., Defendants. (Supreme Court, Kings Special Term, March, 1899.) Place of trial- Change of, in equitable action to restrain a nuisance Common law action distinguished - Code Civ. Pro., § 968, subd. 2, 982. An equitable action brought to enjoin the continuance of a nuisance, consisting in an addition to the height of an old dam in Franklin county, which addition raises the water in Tupper's lake and overflows lands of the plaintiff bordering on said lake and situated partly in Franklin and partly in St. Lawrence counties, is not an action "affecting an estate, right, title, lien or other interest" in the said lands, and, therefore, will not, at the instance of the defendants, be changed from Kings county, the plaintiff's residence, to St. Lawrence as the proper county under section 982 of the Code of Civil Procedure. The action "for a nuisance" mentioned in said section is the common law action" for a nuisance" enumerated in subdivision 2 of section 968 of said Code and is triable by a jury; and said section 982 has no application to an equitable action in which a jury trial is not a matter of right. If such an equitable action as the present could be deemed one which affects the title or interest in real property, within the meaning of said section 982, such real property is the dam and the land to which it is appurtenant, which are in Franklin county. MOTION to change the place of trial. This action is brought in Kings county, where the plaintiff resides, to obtain a judgment of injunction requiring the defendants to remove a superstructure to a dam owned and used by them across Rackett river in Franklin county, so as to reduce the height of such dam, and thereby prevent it from so raising the water above it in Tupper Lake as to overflow the plaintiff's lands bordering on the said lake, and situated partly in Franklin county and partly in St. Lawrence county; and enjoining them from hereafter restoring such superstructure; and also to recover the damages sustained by the plaintiff by such overflow of his lands heretofore. The defendants served a written demand under section 986 of the Code of Civil Procedure that the place of trial be changed from Kings county to St. Lawrence county as the proper county. Misc.] Supreme Court, March, 1899. Charles MacVeagh for motion. Hamilton Wallis opposed. GAYNOR, J.: The defendants claim that the action is for damages for trespass to land, and that as part of the land is in St. Lawrence county they are entitled to have the action tried there under that part of section 982 of the Code of Civil Procedure which requires every action to procure a judgment "annulling or otherwise affecting an estate, right, title, lien or other interest in real property, or a chattel real ", to be tried in the county where such land or chattel real is situated. The action of trespass quaere clausum fregit was and is, as its name implies, an ordinary method of trying title to land, and is therefore local to the county in which the land is situated. But this is not such an action. It is a suit in equity to restrain the continuance of a nuisance, viz., the addition to the height of the old dam, which causes the water of Tupper Lake to rise and overflow the plaintiff's land; and as an incident the plaintiff asks that his damages be assessed. If this be an action "for a nuisance" within the said section, the nuisance, viz., the dam, is in Franklin county, and no demand was made for a change to that county. But "an action for a nuisance as mentioned in the said section, is the common law "action for a nuisance" viz., for damages for and abatement of a nuisance, mentioned in section 968, and in which the parties are entitled to a jury trial, whereas the present is an equitable action, in which there is no right to a jury trial (Cogswell v. The Railroad Co., 105 N. Y. 319). The parties are not entitled to a jury trial in an action which belongs to equity, unless by some statute provision. There were and are no juries in chancery. If an equitable action for a judgment to take down and restrain the continuance of a dam is one affecting title or interest in real property, such real property, viz., the dam, and, so far as appears, any land to which it is appurtenant or an easement, is in this case in Franklin county. fall The other ground of the motion is "the convenience of witnesses and the ends of justice" (Code, sec. 987). The moving papers so far short of complying with the rules in respect of the convenience of witnesses that it does not seem that this part of the motion is relied on. I do not understand that the "ends of justice" may be separately considered. The statute couples together the two things as one, viz., "the convenience of witnesses and the Supreme Court, March, 1899. [Vol. 27. ends of justice." And anyhow, there is nothing before me from which I can conclude that the ends of justice require the case to be tried in St. Lawrence county, where it does not belong at all, instead of Franklin county where the site of the nuisance is, and is seen of all men. The motion is denied. MARY E. EVANS, Plaintiff, v. WILLIAM C. EVANS, Defendant. (Supreme Court, Kings Special Term, March, 1899.) Absolute divorce Rules of Practice. Practice, on default, under rule 72 of the General If the verified complaint in an action for an absolute divorce avers the facts enumerated in rule 72 of the General Rules of Practice, i. e., that the adultery was committed without the consent, etc., of the plaintiff; that five years have not elapsed since he discovered it or the adulterous intercourse, and that he has not since voluntarily cohabited with the defendant, the plaintiff need not and should not, on default, show these facts. If they are not averred in the complaint, then they should be shown by an affidavit. Rule 72 of the General Rules of Practice applies only to cases of default, and the things stated in it are not a part of the plaintiff's case but are matters of defense which the plaintiff is permitted to aver in the complaint in anticipation of a default. ACTION for absolute divorce. Application to the court for judgment on default. F. H. Renman for plaintiff. GAYNOR, J.: The time of the court is so much wasted on the hearing of these defaults in actions for absolute divorce, by the unnecessary introduction of evidence on certain points, that something needs to be said about the practice. Rule 72 of the General Rules of Practice provides that "unless it be averred in the complaint" (1) that the adultery was committed without the consent, connivance, privity or procurement of the plaintiff, (2) that five years have not elapsed since the plaintiff discovered the adultery, (3) or where the defendant is living in adulterous intercourse that five years have not elapsed since the plaintiff discovered such inter |