
    Max Hartman et al., Resp’ts, v. Manhattan Railway Company, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 14, 1894.)
    
    Jury—Waiver.
    Where, in an action against an elevated railway company for an injunction and damages, the record contains no demand upon the defendant for a jury trial, the right to such trial was waived, even though the defendant was entitled to the same.
    Appeal from a judgment in favor of plaintiffs.
    
      R. L. Maynard, for app’lt; C. L. Pashley, for resp’ts.
   Van Brunt, P. J.

This action was commenced in October, 1890, by one Isaac Hartman, to procure an injunction against the further maintenance and operation of the elevated road in front of the premises No. 340 Bowery, of which he was the owner, and to recover damages, for the trespasses already committed by such maintenance and operation. Isaac Hartman died intestate on the 28th of March, 1891, and thereafter the action was reviewed in the names of his administrators and the heirs at law, who are the present plaintiffs. On the 24th of June, 1891, the heirs at law conveyed the premises to one Merendante, and in January, 1892, Merendante also commenced an action for damages. The recovery-in this action was allowed for the damages sustained by the operation of the elevated railroad from a date six years prior to the commencement of this action down to June 24, 1891,—the date of the conveyance of the premises by the heirs of said Isaac Hartman to said Mercadante.

Upon this appeal, it is urged that the court erred in refusing to dismiss the complaint as to the equitable cause of action, and in refusing to direct that the issue as to past damages be sent to the circuit for trial by a jury. Without discussing the question as to the right of the defendant to a trial by jury upon the subject of past damages, the right to recover for damages having been lost by conveyance of the premises, it is sufficient to say that no such question is raised by the record. We fail to find any demand for a jury trial. At the opening of the case the defendant’s counsel moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. This was á motion to dismiss generally. The counsel for the defendant then moved to compel the plaintiff to elect as to whether he would proceed with the trial of the action on the theory that the defendant’s acts were in the nature of a continuing trespass, or whether they were acts in the nature of a continuing nuisance. Such a •demand of election, unaccompanied by a demand for a trial by jury, is of no avail. It was within the jurisdiction of the court, where no rights of the defendant were infringed, either to grant the motion for election or not; and unless the defendant was entitled to and demanded a jury trial, no rights were infringed by the denial of the motion to elect. Ho such demand accompanied the motion for an election. The defendant’s counsel then moved to compel the plaintiff to elect-as to whether he would proceed with the trial of this action upon the theory that he owned the fee in the street in front of the premises in suit, or whether he had only an easement therein. These motions having been denied, the trial proceeded, and our attention has not been called to, and we have been unable to find, any place where a demand for a jury trial was made in respect to past damages, prior to the trial of the issues upon that point. When the plaintiff rested, the defendant again moved to dismiss the complaint, upon the ground that the plaintiff had failed to prove facts sufficient to constitute a cause of action. Then the record says: “ Counsel for the defendant renewed the motion to send this case to the circuit, on the ground that it appears that the plaintiff has not the title to the property.” But no such motion had been previously made, so far as we have been able to find, and even at this time no demand for a jury trial was made. It is clear, therefore, that the record contains no demand the of the defendant for a jury trial, even if it was entitled to the same. Under these circumstances, it seems by subdivision 4 of § 1009 of the Code of Civil Procedure the right to a jury trial was waived.

It follows that the judgment appealed from must be affirmed, with costs.

All concur.  