
    Benjamin P. Johnston, Resp’t, v. The Manhattan Railway Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 30, 1891.)
    
    1. Railroad—Elevated—Juey.
    The mere allegation, in a complaint against an elevated railroad company that the trespass upon real estate is unauthorized and is a nuisance, with a demand that the continuance of such trespass he enjoined, does not make the action one for a nuisance so as to make it triable by jury.
    2. Same—Damases.
    Evidence of damages to adjoining property bearing the same relative situation to the railroad as plaintiff’s property, is sufficient to justify the court in finding that the railroad structure affected plaintiff’s property in the same manner.
    Appeal from judgment entered on decision of the court at special term.
    
      Samuel Blythe Rodgers, for app’lts; E. W. Tyler, for resp’t.
   Ingraham, J.

The complaint in this action alleges that plaintiff is the owner of premises abutting on South Fifth avenue, in the city of ¡New York.

That as an incident and appurtenant to plaintiff's ownership and occupancy of such premises the plaintiff has and had a right, interest and easement in South Fifth avenue of free and unimpaired use for the usual and ordinary purposes of a public street or highway. That plaintiff is seized and possessed of a portion, of South Fifth avenue immediately in front of and adjoining the premises before described to the centre of the street.

And the complaint further contains allegations tending to show that the defendants, by the erection and maintenance of the railroad structure, have appropriated plaintiff’s easement in the street and such erection and maintenance of such railroad and structure is a trespass upon plaintiff’s property.

The only allegation in the complaint from which it could be claimed that the action is to abate a nuisance is the allegation that the structure of the defendants as it now exists and as above described has been erected and maintained without legal right, and is a special nuisance and injury to his, plaintiff’s, premises.

A consideration of the whole complaint shows that the action is not an action to abate a nuisance, but is an action to restrain a continuing trespass, and as such clearly an equitable action.

No motion was made by defendant to frame any issue to be tried by the j ury, nor was the plaintiff asked to elect on the trial as to whether he maintained his action as an action to abate a nuisance, or an action to restrain a continuing trespass.

Defendants asked the court to send the action to be tried by a jury on the ground among others that the cause of action, if any, was a nuisance, and that motion was properly denied as the cause of action set up in the complaint is clearly an action to restrain a trespass.

In the case of Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y., 321; 7 St. Rep., 203, it was held that an action in -which the complaint prays judgment for damages and the abatement of the nuisance complained of, and also for an injunction restraining the defendants from continuing the nuisance and permitting its lands to be used for the purpose of carrying on any business thereon which shall injure the plaintiff in the enjoyment of her property, was not an action for a nuisance within § 968 of the Code.

That reading this section in connection with §1660 it was held that an equitable action to restrain the continuance of the nuisance is not an action for nuisance within § 968.

The mere allegation in the complaint that the trespass upon real estate is unauthorized and is a nuisance, and asking that the continuance of such trespass be enjoined, would not in view of this decision above cited, make the action one for a nuisance to which the plaintiff is entitled as matter of right to a trial by jury.

The point is taken by defendants that the findings that the defendants’ structure and tracks and the operation of its trains of cars have injured the plaintiff’s casement of light and air in the lower part of the building to- some extent, and the fourteenth finding, that cinders have, ever since the operation of such structure, fallen and do fall from said cars, engines and passing trains upon the street and sidewalk in front of said premises and upon and into said buildings, was entirely unsupported with evidence.

Counsel stated in his brief that the case will be searched in vain for a scintilla of evidence to sustain this finding and we are asked to reverse the judgment because this finding is entirely unsupported by evidence.

If there is any evidence to support the finding the court will not review the question of fact, as the case does not contain a statement that all of the testimony taken upon the trial is included within the case as settled.

An examination of the record shows that Frederick Schaffer swore that the trains interfered with, the light, very often making a continual fluttering, very annoying, and that there are cinders and dust coming from the elevated railroad, and describing the way in which the cinders and dust from the railroad affected his business.

Witness Hammerfield also testified that as the elevated trains pass it is often dark and that he could not keep the door open because it caused so much noise.

The witness Miles also testified in answer to the question: Q. What have you observed in respect to the physical operation of the elevated railroad ? A. I found train dust, ashes, cinders and smoke coming into my apartments to such an extent as to be a nuisance; and that it came from both the north and south,” and that his house is the same distance from the structure as the other houses up the street; that the railroad runs in the middle of the street.

It is true that none of these witnesses testify directly that the smoke and cinders went upon the plaintiff’s, property, but they testified as to adjoining property, the railroad being situated the same relatively to such property as to that of the plaintiff’s, and we think that this evidence was sufficient to justify the court in finding that the elevated railroad structure affected plaintiff’s property as it affected adjoining property.

The other questions presented on this appeal have all been passed upon adversely to the defendants by this court and do not require further notice. The amount allowed appears to be reasonable and we see no reason to disturb the judgment.

Judgment affirmed, with costs.

Daniels, J., concurs; Van Brunt, P. J., concurs in result.  