
    John W. Whaley, Appellant, v. The City of New York, Respondent.
    
      Action for an injunction and damages—a discontinuance of the act sought to he enjoined does not require an amendment of the complaint — equity will still retain jurisdiction.
    
    If, after the commencement, and before the trial, of an action to obtain an inj unction and to recover damages, the defendant discontinues the acts sought to be enjoined, it is unnecessary for the plaintiff to amend his complaint by striking out his demand for injunctive relief.
    In such a case, equity having obtained jurisdiction of the case by the service of the summons and complaint, will retain jurisdiction thereof for the purpose of granting the plaintiff the damages to which he may be entitled.
    Appeal by the plaintiff, John W. Whaley, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 3d day of February, 1903, denying plaintiff’s motion, for leave to amend his complaint.
    
      George Wallace, for the appellant.
    
      R. Percy Chittenden [James McKeen with him on the brief], for the respondent.
   Hooker, J.:

The plaintiff alleged in his complaint that the defendant had by certain unlawful acts interfered with the flow of water in Freeport creek, and demanded judgment that the defendant be enjoined from maintaining and operating its works and stations in such a manner as to divert the waters from that creek, and for the sum of $20,000 damages to his business and property already incurred and sustained, and for the permanent loss and damage which would be sustained if the defendant should be allowed to maintain the said works. Subsequent to the service of the answer— there had been no trial—the defendant restored the waters of the creek, so that in its present condition the plaintiff is not damaged. He moved at Special Term for permission to amend his complaint, striking out his demand for injunctive relief and asking for the sum of $6,000 and interest as damages for his past injuries. The learned court at Special Term exercised its discretion against the plaintiff, who appeals from the order denying the motion.

We think that the order made by the court below should be sustained on the one ground, if for no other reason, that the relief asked for by the plaintiff in his motion is unnecessary. It seems to be admitted, and we think quite properly so, that the complaint as it stands alleges an equitable cause of action. The mere fact that when the plaintiff comes to trial he will find himself unable to obtain any injunctive relief, on account of the cessation of the acts to restrain which the action was brought, is no reason why a money judgment for the amount of his proper damages, if any, should not be awarded to him. Equity obtained jurisdiction in this case upon the service of a summons and complaint, which alleged an equitable cause of action, and will not be divested of that jurisdiction by the discontinuance of the acts complained of. The principle has been asserted by the courts of this State so often that there is no longer room for doubt. It is a familiar principle that a court of equity, having obtained jurisdiction of the parties and the subject-matter of the action, will adapt its relief to the exigencies of the case. It may order a sum of money to be paid to the plaintiff and give him a ¡personal judgment therefor when that form of relief becomes necessary in order to prevent a failure of justice and when it is for any reason impracticable to grant the specific relief demanded.” (Valentine v. Richardt, 126 N. Y. 277.) To the same effect are Murtha v. Curley (90 id. 372); Van Rensselaer v. Van Rensselaer (113 id. 208); Bell v. Merrifield (109 id. 202); Van Allen v. N. Y. El. R. R. Co. (3 Misc. Rep. 53); Smith v. Ingersoll-Sergeant Rock Drill Co. (7 id. 374).

If the plaintiff can establish that at the time of the commencement of his action he was entitled to equitable relief, he is privileged to have his damages ascertained in this action without the necessity of amending his complaint or withdrawing from equity and commencing an action at law. The recent case of McNulty v. Mount Morris Electric Light Co. (172 N. Y. 410) has come to our notice in connection with this appeal. It decides that where a legal claim for damages has been joined, fon the purpose of avoiding a multiplicity of suits, with an action for an injunction to restrain a nuisance, and where before the trial circumstances have occurred which divest the action of all equitable features, the defendant is entitled to a trial by jury. This is not a decision of the question now under consideration, but adds the force of its holding, which is not a little, to the conclusion we have reached. Were this a motion to have the action tried before a jury the same question would be presented; yet it logically follows that if, under the doctrine of this case, a party is entitled to a trial by jury of the legal question of damages, where the equitable considerations have disappeared since the commencement of the action, an amendment of the complaint to effect the same result is quite unnecessary.

The order appealed from should be affirmed.

Goodrich, P. J., and Woodward, J., concurred; Bartlett and Hirschberg, JJ., concurred in the result solely on the ground that a jury trial may be had in .this action without the desired amendment. (See McNulty v. Mount Morris Electric Light Co., 172 N. Y. 410.)

Order affirmed, with ten dollars costs and disbursements.  