The courts of equity granted relief as readily and certainly, in a proper case, where the nuisance had been erected, as where it was about to be. If it had been intended to make the statute under consideration applicable to the latter class only, we think apt words would have been used to express such intent. Because, therefore, of the existence of the statute, continuing in force the equitable remedy, we think the Wisconsin case above cited is distinguishable.1 asks for owning and damages from Before care eventh to trial pho Mlace was Modified and affirmed. and he moved out. I moved tandane side of ct. tion stricken d. D's motion slams I have budsus ined, for requitycts will never deprive from this it to trishly ging Hissues out MCNULTY v. MOUNT MORRIS ELECTRIC LIGHT CO. only • go to a will allows it proceding to COURT OF APPEALS, NEW YORK, 1902. wput pulsplicity of aptions krivent bust to for hat dangwild not [172 New York Reports, 410.] issenting opinion ACTION for an injunction and damages. The complaint alleges so that ifquity that the defendant so negligently constructed and operated its It could gue machinery as to discharge upon the adjacent property of the this it only quest lift, becaud fit plaintiff great quantities of soot, cinders, ashes and noisome gases, not coming undeunpleasant odors, water and steam; also causing incessant noises totute geffings and very great vibration. At the time this action was begun the Da tial for danglaintiff was in occupancy of the premises under his lease, but his lease expired and he moved out before the trial; the defendant was given leave to serve an amended and supplemental answer, setting up these facts. The cause coming on for trial at Special Term, on the equity side of the court, the defendant moved that it be stricken from the calendar, upon the ground that the issue remaining could not be tried; that the plaintiff asks for an injunction; that inasmuch as he is not now in possession of the property he is not entitled to an injunction; that the action is, therefore, a common-law action for damages and not an action for an injunction, and not an action over which equity has any jurisdiction. The trial judge denied this motion, and after the introduction of evidence by both parties, rendered judgment in favor of the defendant, to the effect that the plaintiff having removed from the premises prior to the trial is not entitled to an injunction, but that the court could, notwithstanding, retain jurisdiction of the action for the purpose of assessing plaintiff's damages; that he is entitled to judgment for $1,189.05 damages, etc. The Appellate Division reversed this judgment and dismissed the complaint, and the plaintiff appeals.* 1 See 200n., 3d par.; Courtwright v. Bear, 30 Cal. 573 (1866). For a similar question in interpleader, see 2 Ames Eq. Cas. 50n., last par.; Sherman v. Shubert, 247 Fed. 256, 260 (C. C. A., 2d, 1917). PARKER, Ch.J. I agree with Judge BARTLETT's conclusion that there should be a new trial in this action, but differ with him in so far as he holds that the trial court did not err in refusing to grant defendant's motion to have the action tried on the commonlaw side of the court. It appeared when this case was moved for trial that the plaintiff was not then entitled to equitable relief, although he was so entitled at the time of the commencement of the suit. It is undoubtedly the rule and long has been that when equity takes jurisdiction it will draw to itself all matters necessary to a final disposition of the controversy, as where an injunction is granted, if damages have resulted by reason of the acts restrained, equity will admeasure and award the damages as part of the relief. But while equity has this power it will not exercise it for the purpose of depriving a litigant of his right of trial by jury" the fundamental guaranty of the rights and liberties of the people " when the question of damages is the only question presented for decision. Courts are jealous in protecting this great right instead of seeking opportunities for depriving litigants of it. This action was properly brought on the equity side of the court, but before. the cause was reached for trial plaintiff had passed out of the possession of the property, thus parting with the right to the injunction, and there remained to him only his claim for damages. For that reason defendant's motion to have the action tried before a jury should have been granted. The authorities cited in support of the contrary position do not in my judgment sustain it. The first is Van Allen v. N. Y. E. R. R. Co., 144 N. Y. 174, brought by the owner of premises abutting on a street through which an elevated road ran, to restrain the operation and maintenance of the road and for damages. Plaintiff sold the premises before the trial and thereby parted with his right to an injunction, leaving only the question of damages. Counsel for both parties, however, stipulated that the action be sent to a referee to determine all the issues. It was not until the action came on before the referee that defendant attempted to raise the point that he was entitled to have the question of damages submitted to a jury. It was then too late. As this court said (page 178): "The defendants were not entitled to a jury trial, for the reason that they had waived it by consenting that the claim for damages should be referred with the claim for an injunction, and the fact that the latter had been transferred to another by the conveyance, at the trial or during the pendency of the action, did not deprive the referee of jurisdiction so long as any cause of action. remained. The right of trial by jury having been waived, there was no longer any question except whether the trial should be had in a court of law or a court of equity, and, since both remedies are now administered by the same court and under the same pro cedure, the defendants' contention related to forms and not to matters of substance, and was not material." 1 .. So far I have considered this matter as if the inquiry were whether in every action brought to secure equitable relief the court should on motion send the case to a jury for trial, upon its appearing that the right to equitable relief had passed away after the commencement of the suit. And I shall conclude in that vein. But the fact should not be lost sight of that in cases of this character, viz., actions to abate a nuisance and recover the damages occasioned thereby, trial by jury is a matter of right for the defendant, even if the complaint is in form as for equitable relief against the continuance of a nuisance, the prayer for damages being incidental thereto. And this is so, because, prior to the adoption of the Constitution, the existence of an alleged nuisance and the amount of damages were both submitted to a jury for decision, and, hence, the constitutional guaranty of trial by jury applies to such an action as one of the "cases in which it has been heretofore used." The two cases from the United States Supreme Court which have been cited (Beedle v. Bennett, 122 U. S. 71; Clark v. Wooster, 119 U. S. 325) do hold that in actions in United States courts for an injunction and damages for the infringement of patents, the fact that by the expiration of the patent the ground for an injunction has disappeared, does not preclude the court sitting in equity from granting the incidental relief of damages. But the reason for this rule in the United States courts is plain. Though the same courts have cognizance of both equitable and legal causes the practice and the pleadings are entirely different for each class of cases and if a proceeding brought on the equity side of the court is not one of equitable cognizance, the cause must be dismissed and a new proceeding must be instituted at law. . . . It appears, therefore, that while in our Supreme Court equitable and legal relief are possible under the same pleadings and a strict enforcement of the rule that makes actions at law triable by jury would, in a case like the one at bar, result in no hardship, but would only entail a shifting of the cause from the equity to the law side of the court, the trial proceeding there on the same pleadings, in the United States courts the strict enforcement of the rule would necessitate the dismissal of the proceedings and the plaintiff would be forced to begin a new action at law or abandon his cause. It seems plain to me, therefore, that the United States courts have adopted the practice disclosed by the two cases cited in order to avoid multiplicity of suits and to save both parties. 1 The learned Chief Justice also distinguished Valentine v. Richardt, 126 N. Y. 272; Koehler v. N. Y. El., 159 N. Y. 218; Henderson v. N. Y. Cent.. 78 N. Y. 423; Pegram v. N. Y. El., 147 N. Y. 135. Other subsequent citations and quotations have been omitted, as well as the discussion by Bartlett, J., of another point, that the complaint should not be dismissed. from the hardship of resorting to another action for the decision. of their controversy in a case where, when the suit was begun, plaintiff was entitled to equitable relief. And, hence, this court is not warranted in following the practice of the United States courts in this respect, thereby abandoning its own settled practice, which is not only workable, but more nearly conforms to the letter and spirit of the constitutional provision guaranteeing trial by jury. It follows, therefore, that the denial of defendant's motion for a jury trial in this case was error. · The judgment should be so modified as to grant a new trial, and as so modified affirmed, costs in all courts to abide the event. BARTLETT, J. . . . We are of opinion that the ruling of the trial judge was proper and the Special Term had jurisdiction of the cause. It is well settled that the jurisdiction of a court of equity depends upon the position of the plaintiff and the relief he is entitled to at the time of the bringing of his action, and if the jurisdiction has once attached it is not affected by subsequent changes so long as any cause of action survives, although for that there may be an adequate remedy at law. . . The additional point is made that this action is for a nuisance and governed by section 968 of the Code of Civil Procedure. That section reads as follows: "In each of the following actions, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is directed: "1. An action in which the complaint demands judgment for a sum of money only. "2. An action of ejectment; for dower; for waste; for a nuisance; or to recover a chattel." In Cogswell v. N. Y., N. H. & H. R. R. Co. (105 N. Y. 319) this court held that actions like the one before use are not governed by this section. In the case cited the complaint demanded both legal and equitable relief. It prayed judgment for damages and an abatement of the nuisance complained of, and also for an injunction restraining the defendant from continuing the nuisance and from permitting its lands to be used for the purpose of carrying on any operations thereon which would injure the plaintiff in the enjoyment of her property. Judge ANDREWS said: "This is not, we think, an action for a nuisance within section 968 of the Code of Civil Procedure." We are of opinion that this rule should be applied to both the plaintiff and defendant, as it is clear that the present case is not contemplated by section 968, and is not distinguishable from actions in equity to restrain the operation of an elevated railroad and for damages, in which the latter is merely incidental and alternative and the defendant is not entitled to a jury trial in fixing the amount. HAIGHT, VANN, CULLEN and WERNER, JJ., concur with PARKER, Ch.J.; O'BRIEN, J., concurs with BARTLETT, J.2 P, city, claim that who's not tith to be 3gistrip afland on which is part a pto move the they con pimprove Cawilling to thy it at andacho for SYRACUSE v. HOGAN. a jury trial. to Ht. This inprimsiely a suit de COURT OF APPEALS, New York, 1923. should be vrdozo dissenting refote and [234 N. Y. Reports, 457.] MCLAUGHLIN, J. The appellant is the owner of a lot of land dipsituate on the westerly side of South Salina street, a public highis ne ali moking way in the city of Syracuse, a correct description of which is set quity wait for all out in the complaint and admitted in the answer. I like them giver The complaint alleges that South Salina street in front of said premises is and for more than one hundred years prior to the commencement of the action has been a public highway ninety-nine feet in width, dedicated to the use of the public for street purposes, and is one of the public streets of the city; that plaintiff is and at all times mentioned has been the owner in fee of South Salina street adjoining appellant's lot on the east, or the fee thereof has been in the people of the state of New York and plaintiff holds the same in trust for the use of the public; that it is its duty to keep the streets within its borders free from obstructions and cause the removal therefrom of all encroachments thereon. and that ordinances have been passed for that purpose; that on the 1st of December, 1913, appellant wrongfully and unlawfully took from one Church and wife a deed purporting to convey to him a strip of land twenty-nine feet in South Salina street adjoining his said premises on the east and extending along the entire South Salina street front of appellant's lot, to which the grantors in said deed had no title; that appellant now asserts and claims title to said strip and has incumbered the same with permanent buildings and structures. Then follow allegations to the effect that the maintenance of such buildings and structures is illegal and unauthorized; that plaintiff has demanded that the same be removed, but that 1 See Code cases in addition to the N. Y. cases in 274n., Logansport v. Uhl, 99 Ind. 531, 539 (1884); Meyer v. Phillips, 97 N. Y. 485 (1884); Sadlier v. N. Y., 185 N. Y. 408, 414 (1906); Di Menna v. Cooper, 220 N. Y. 391, 396 (1917); Raftery v. World Film Corp., 180 App. Div. 475, 483 (1917); Moon v. Natl., 31 Misc., 631 (1900); De Mille v. Casey, 121 Misc. 78 (1923); Bigelow v. Washburn, 98 Wis. 553 (1898). Cf. Lynch v. Metropolitan, 129 N. Y. 274 (1891). Under Mass. Laws, 1887, c. 383, supra, 262, damages were awarded by the court in the following tort suits, though specific relief became impossible during the proceedings: Case v. Minot, 158 Mass. 577, 588 (1893); Lexington v. Canton, 171 Mass. 414 (1898). See also Rosen v. Mayer, 224 Mass. 494 (1916), where a purchaser brought a bill to rescind the sale for fraud, but during suit decided to keep the property and get damages. Under U. S. Jud. Code § 274a, supra, 263, see Munger v. Natl., 252 Fed. 144 (C. C. A., 8th, 1918); Marquette v. Oglesby, 253 Fed. 107 (Ill., 1918). See 19 L. R. A. N.s. 1075; W. D. Lewis, 41 Am. L. Reg. N.s. 408. For general references, 258n.1, 1st par. |