
    Georgette Goldschmidt, Respondent, v. The New York Steam Company, Appellant.
    
      An action to restrain a wrong constituting a nuisance, is equitable — a corporation furnishing steam to customers, tJvrowing steam, ashes, dust and cinders upon, neighboring property.
    
    The complaint in an action alleged that the defendant,, which was a corporation engaged in supplying steam to customers, so negligently conducted its business as to constitute itself a nuisance, greatly diminishing the value of the neighboring premises of the plaintiff by allowing large quantities of steam, ashes, coal dust, cinders and soot to escape from its works, which corrupted the air. It stated specific injuries sustained by the exterior and interior of plaintiff’s premises and by his household furniture, and asked as relief that the defendant be forever enjoined from operating its works in any manner so as to produce the nuisances complained of, and also demanded damages for injuries already sustained. It also alleged that, because of the continuing character of the wrong in question, an adequate remedy at law did not exist.
    
      .Held, that the case was not an action for a nuisance, and, therefore, triable by a jury within the provisions of section 968 of the Code of Civil Procedure; .
    That the provisions of section 1660 of the Code of Civil Procedure, providing that “ An action for a nuisance may be maintained in any case where such an action might have been maintained under the laws in force immediately before this act takes effect,” referred to the common-law action of nuisance; that is to say, either to an action on the case for damages, or to an action to abate a nuisance;
    That 'the present action was not brought to accomplish exclusively either of these purposes, hut was designed to restrain by permanent injunction the con- ■ tinuance of a wrong, which wrong happened to consist in the maintenance of . a nuisance;
    That the action, being equitable in its nature, was not triable by a jury.
    Appeal by the defendant, The Hew York Steam Company, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the -county of Hew York on the 16th day of April, 1896, as denies its motion to strike the cause from the Special Term calendar of the ¡Supreme Court.
    
      James W. Hawes, for the appellant.
    
      Charles Steele, for the respondent.
   Patterson, J.:

This action was placed upon the calendar of the Special Term of this court; the defendant moved to strike it from that calendar that it might be remitted to the calendar for the trial of jury issues the motion was denied, and from the order entered thereupon this appeal is taken. The defendant is a corporation organized under and by virtue of the laws of the State of Hew York, and is engaged in the business of supplying steam t'o various customers in the city of Hew York, who use such steam for the purposes of heating, cooking and motive power in dwelling houses or in other buildings in that city. In. the conduct of its business the defendant uses an extensive plant, -apparatus and appliances for generating such steam, and among the appliances thus used are boilers, furnaces and chimneys. The defendant’s works are located' quite' near a house in the city of Hew York owned by the plaintiff, and- it is alleged in the complaint that the operations of the defendant are so negligently or improperly conducted or earned on as to constitute a nuisance near the premises of the plaintiff, greatly diminishing their value and the enjoyment thereof by the occupant; and that in the conduct of its business at the works and with the apparatus and appliances referred to the defendant causes and suffers large quantities of steam, ashes, coal-dust, cinders and soot to escape from its works, thereby corrupting and tainting the air, making it noxious and disagreeable and injurious to the health of the inhabitants of the neighborhood. The complaint also contains specific charges of the manner in which injury is occasioned both to the exterior and interior of the plaintiff’s premises, and to the household furniture and effects contained therein ; and various other matters are stated in the complaint, which, if true, establish that the defendant’s works • are not only negligently conducted, but that in their operation they are, in and of themselves, a nuisance. The relief prayed for is that the defendant and its officers, etc., be forever enjoined and restrained from operating and conducting its said works or using the premises upon which those works are situated in any manner so as to produce the effects complained of, and that the plaintiff recover damages already sustained 'in an amount claimed. The complaint also contains allegations that by reason of the continuing character of the wrong perpetrated by the defendant in the use of its works or by the maintenance of the nuisance an adequate remedy at law does not exist.

Issue was joined upon this complaint and the cause being ripe for trial was put on the Special Term calendar. The defendant insists that it is as of right entitled to a trial by jury, inasmuch as the action is for a nuisance, and being such, the Code of Civil Procedure provides, that there must be a trial by jury: The section of the Code relied upon is as follows: § 968. 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 : First, an action in which the complaint demands a judgment for a sum of money only ; second, an action of ejectment;' for dower; for waste; for a nuisance; or to recover a chattel.” The point to be determined on this motion was, whetner the action is for a nuisance. In the disposition made of it in the court below the learned judge held it was not, and in this wiew of the case Wé concur. Section 1660 of the Code of Civil Procedure provides for actions for a nuisance in the following words : “ An action for a nuisance may be maintained in any case, where such an action might have been maintained, under the laws in forcé, immediately before this act takes effect.” What is referred to in this section, we think, is the common-law action of nuisance ; either an action on the case for damages or an action to abate a nuisance. But this present action is not brought exclusively to accomplish either of these purposes. It is in analogy with, and we think is to be governed by, what was held in the case of Cogswell v. The N. Y., N. H. & H. R. R. (105 N. Y. 319). It is true that in that case the question arose upon an application made by the plaintiff for a trial by jury on the ground that he was as a matter of right entitled to it, and that it was held that facts were shown which deprived him of that right and that he had waived it, but the nature of an action such as the present, in which a plaintiff seeks the relief of a permanent injunction to restrain the continuance of a wrong, which wrong happens to consist in the maintenance of a nuisance, was considered by the Court of Appeals, and sections 968 and 1660 of the Code of Civil Procedure were construed by that court and an authoritative statement of their meaning given. It was held that when brought in the form of this suit and for similar relief to that here demanded, the action is not one for a nuisance within the meaning of the Code of Civil Procedure The court says in the case referred to : “ This is not, we think, .an action for' a nuisance within section 968 of the Code of Civil Procedure. The .action of .nuisance is mentioned in the section together with other common-law actions, all of which must, the section .declares, be tried by' jury, unless a j.ury is waived or a reference is directed. Reading the sec-’ tion .in connection with section 1660, it is clear, we think, that an equitable action to restrain the continuance of a nuisance demanded is not* action for nuisance within section 968.”

It is suggested that the case of Lefrois v. County of Monroe (88 Hun, 109) explains and shows the inapplicability of the Cogswell case to the facts set forth in the complaint in the case at bar, but the opinion of the court in the Lefrois case in commenting upon the Cogswell case deals only with the question of waiver. It does not overthrow the authority of that case classifying such an action as this as an equitable action, to be tried in the only way equitable actions can be tried, that is, by the court without a jury. The authority of the Cogswell case justified the decision of the court below and is controlling upon us, and the order appealed from should, therefore, be affirmed, with ten dollars- costs and disbursements.

Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements. 
      
      Sic.
     