
    WILLIAM WATSON, et al., as Trustees, &c., Respondents, v. THE MANHATTAN RAILWAY CO., et al., Appellants.
    
      Equity action, trial by jury error— Waiver of right to demand trial by court, what not—Character of action, how determined—Judgment not authorized by verdict.
    
    An action in equity involving a claim for damages as incidental to the equitable relief asked for, was brought on to trial before a jury; after the plaintiff had opened the case, defendant moved that the cause be stricken from the calendar, and ordered to be tried at special term as an equity case, which motion was denied and exception taken. The trial proceeded, and resulted in a verdict for plaintiff. Held, that the denial of the motion was error, for which this judgment entered on the verdict should be reversed.
    Where the allegations of a complaint are such as that by waiving the claim to equitable relief, the plaintiff has left an action for damages solely, which waiver may be made at the trial, and in case it is made, the action would be triable by jury,'—defendant is in time with his demand for a trial by the court, if he makes it as soon as it becomes apparent by the opening of the case that plaintiff intends to insist on his claim for equitable relief. The fact that one of the defendants, after plaintiff had- noticed the cause for trial at a jury term, also noticed it for trial at the same term, is not a waiver.
    The character of the action is determined by the allegations of the complaint, and the nature of the relief demanded. Where the allegations of the complaint are such as would entitle the plaintiff to equitable relief, and he prays for the equitable relief to which those allegations would entitle him, it is an equity action, although under the same allegation he is entitled to damages as incidental to the equitable relief, and pirays for such damages.
    Where an equity case is tried before a jury, and their findings with the facts admitted in the pleadings, do not cover all the issues, the case must be brought to a hearing before the court at a special term, when the court may or may not adopt the finding of the jury, and other facts may be proved, and the court must make findings of fact and law.
    In the case at bar, plaintiff’s right to injunctive relief depended on the fact of the use, occupancy, or appropriation by defendant of his easement in the street. This fact was put in issue by the pleadings, and evidence bearing on it given by both sides. Held, that the verdict not having passed, and the court having made no finding on the issues, there was no authority for the entry of the judgment which was entered.
    Before O’Gorman and Ingraham, JJ.
    
      Decided March 10, 1886.
    Appeal from judgment in favor of plaintiff entered on the verdict of the jury, restraining the defendants from maintaining and operating an elevated railroad in certain streets in front of plaintiff’s premises, and for damages.
    The facts appear in the opinion.
    
      Davies & Bapallo, attorneys, and Julian T. Davies and Charles A. Gardiner, of counsel for appellants,
    on the questions decided, argued :—I. There has been a mistrial. The suit is in equity and not at law. The award of damages was . incidental to the grant of equitable relief, and the action was neither changed thereby from equity to law, nor did it become an action in both equity and law. The court erred in denying defendants’ motion that the action be stricken from the calendar and tried op the equity side of the court.
    
      First. The cause of action herein is the alleged wrong, “committed or threatened,” namely, the alleged continuous trespass ; and the fact that the trespass is continuous is the ground for equitable relief (Henderson v. New York C. R. R. Co., 78 N. Y. 430). There is no joinder of legal and equitable causes of action. There is but one cause of action, and that equitable, to restrain a continuing trespass (Henderson v. New York C. R. R. Co., supra; Watson v. Hunter, 5 Johns. Ch. 169 ; Milhau v. Sharp, 27 N. Y. 625 ; Ex parte Marsh, 1 Mad. Ch. Pr. 149 ; Lee v. Alston, 1 Ves. Jr. 81 ; McRea v. London, &c. Ry. Co., 37 L. J. R. Eq. 261; Corning v. Troy, &c. R. R. Co., 40 N. Y. 191; Mad. Ave. Bapt. Ch. v. Bapt. Ch., &c., 73 Ib. 95; New York Nat. Exch. Bk. v. Met. Ry. Co., &c., 53 Super. Ct).
    
    
      Second. The action, being purely equitable, could not be tried by a judge and jury sitting at a regular trial term of the superior court. It should have been tried at an equity term (§ 280, Code Civ. Pro.; Special Pule, 11, 16, of this court for the years 1883 and 1885 ; Court Pules, Hun, 315, 316 ; Bangs v. Duckinfield, 18 N. Y. 592 ; De Bussierre v. Holladay, 4 Abb. N. C. 121).
    
      Third. Defendants were not estopped by laches or acquiescence from moving that the case be stricken from the calendar and tried at special term as an equity case. (1) The proper place to raise such an objection is at trial before evidence has been offered (De Bussierre v. Holladay, 14 Abb. N. C. 111; Walker v. Spencer, 45 Super. Ct. 75 ; Burnham v. De Bevoise, 8 How. 159 ; 3 Wait’s Pr. 77). (2) The defendants are not estopped by acquiescence (People v. Albany & Susq. R. R. Co., 57 N. Y. 161 ; Wheelock v. Lee, 74 N. Y. 500). The defendants herein cannot “be deemed precluded by acquiescence,” by the “ mere technicality ” of having cross-noticed the issue for trial at a jury term.
    
      Fourth. The defendants would undoubtedly be precluded from insisting that this cause could not have been tried as a law cause before a jury, had the plaintiffs elected to proceed only for damages. Had the plaintiffs asked only for a general verdict on the theory of having sustained either permanent or continuing damages, and asked no equitable relief, there would have been no mistrial. The denial of defendants’ motion to send the cause to special term was a decision that the cause was to be tried and disposed of throughout as a law cause. Defendants frequently throughout the trial protested against the cause being tried otherwise than as one for the recovery of money only. Nevertheless, after this course on the trial, and after obtaining answers from the jury to specific questions, the court gave the plaintiffs equitable relief. This cause, therefore, has been treated by plaintiffs and the court as an equitable action, and the trial must be examined as that of an equitable action.
    
      Burnett & Whitney, attorneys, and Henry L. Burnett and Edward B. Whitney, of counsel for respondents,
    on the question decided, argued :—I. The action was properly tried by jury, from its nature, under the authorities. It was an action for a legal cause of action,—“ for a nuisance,”—and the authorities hold that asking equitable relief in addition does not take away the right of trial by jury (Hudson v. Caryl, 44 N. Y. 553 ; Dorr v. Dansville Gas Light Co., 18 Hun, 274 ; People v. Metropolitan Telephone and Telegraph Co., 31 Hun, 596). This action is not the less “ for a nuisance ” because the road, owing to its legislative authority, is not a nuisance quoad the public. A structure erected under statute may be in effect a private nuisance, although not a public nuisance (Wood Nuisances, § 757). A grant which legalizes an obstruction, as far as the public are concerned, and gives a summary remedy for the appraisal of the damage to private owners, does not take away any of the remedies given to the latter by the previous law (Crittenden v. Wilson, 5 Cow. 165). Statutes do not authorize the taking of private property without compensation. As against one whose property he has taken without compensation, the erector of a structure cannot be heard to repeat the familiar quotation that that which has legislative authority cannot be a nuisance. The injured party answers : “ The state has passed no such law, for it cannot; and what it cannot do, it certainly, in contemplation of law, has not done ” (Virginia Coupon Cases, 114 U. S. 270, 288). This railroad edifice is called an “ unlawful structure ” by the court in Taylor v. Metropolitan El. Ry. Co. (50 Super. Ct. 311), and it is on the ground that it is a nuisance that the lessor and lessee companies are suffered to be joined as defendants. Moreover, the right to jury trial, when equitable relief is sought, is not confined to actions “ for a nuisance,” but applies to any action where, on the same state of facts, legal and equitable, remedies are both proper (People v. Albany & Susquehanna R. R. Co., 57 N. Y. 161).
    II. Any objection to a trial by jury was waived by defendants. Even if defendants had a right, properly so called, to a special term trial, the right might be waived (Matter of Cooper, 93 N. Y. 507). But the practice of trying equity cases at special term implies no right in either of the parties. This is shown by the court’s power at any time on its own motion to send all the issues of fact to a jury (Code Civ, Pro. § 911). None of the cases concerning waiver of the right to jury trial are, therefore, in point here. That is really a right, and can be waived only as directed by the constitution of the state (Constitution, Art. I. § 2 ; Code Civ. Pro. § 1009). The defendants have waived their right to object by (1) Delay. The first objection to a jury trial was made two and a quarter years after the commencement of the action, after the jury was impaneled, the case opened, and a motion to compel election had been made by defendants, and denied by the court. (2) Positive acquiescence. The defendant, The Metropolitan Elevated Ry. Co., had itself noticed the case for trial term in September, 1883, and was thus distinctly estopped. Neither defendant returned plaintiffs’ notice of trial served in the same month for the same term ; and both defendants answered “ready ” from time to time from February to June, 1885. An objection was made by defendants to the reading of the affidavit setting forth these facts as “incompetent at this stage.” We have found no authority holding that an affidavit is incompetent on a calendar motion, even if the party sees fit to defer his motion till the midst of the trial.
    III. The objection being waived by defendants, it was proper to direct that the trial proceed. The question became merely one of convenience of the court. There was no inherent difficulty in trying the case before a jury. The right to an injunction depended upon the question, whether the injury was substantial or only nominal (People v. Metropolitan Telephone & Telegraph Co., 31 Hun, 596). If the jury should find substantial damages the court had but to enter judgment of injunction upon their verdict, unless some equitable defense were proved (Id.; S. C., 11 Abb. N. C. 304 ; Parker v. Laney, 58 N. Y. 469). It was necessary for plaintiffs to prove their title and the substantiality of the injury, in order to obtain any real relief, legal or equitable. These being proved, equitable relief followed almost as a matter of course, and there could be no need of any separate trial. Plaintiffs were entitled as a constitutional right to a trial by jury on the question of past damages at least. The course taken by the court was in the interests of justice by deciding the whole litigation at once. It was at most nothing more than an exercise of its general powers under section 971 of the Code.
    
      
       This does not apply to a partition action (§§ 970, 1544 Code Civil Procedure), or to any action of the character specified in section 970. —Reporters.
    
   By the Court.

Ingraham, J.

The complaint in this action demands judgment against the defendants, the Elevated Railroad Companies, for the sum of $80,000 as their damages already sustained; that defendant be enjoined and restrained from maintaining or operating said railroad ; and that the said defendants abate the use of, and remove said railroad and railway station in said street, in front of the land described in the complaint; or that said defendants shall be permitted to continue the existence and use of the said railroad and railway stations upon condition only that the plaintiffs shall first be paid the sum of $200,000, and that until such payment the said defendants be enjoined and restrained from the operation of the said railroad as aforesaid.

There is no allegation in the complaint that defendants had erected the said railroad structure, or operated and maintained the railroad thereon, without authority from the legislature, or that the acts of the defendants complained of, were other than those necessary for the proper use and operation of the railroad.

By the answer of the defendants, it appears that the erection and operation of the said railroad was duly authorized by the legislature of this state, and by the mayor, &c., of New York, and this does not appear to have been disputed upon the trial of the action.

The case was noticed by the plaintiffs for trial at a jury term of the court, and came on for trial at such jury term before the chief judge and a jury. The defendants, after the case was opened, asked that the plaintiffs be directed to elect whether they sue in this action for damages as for a continued trespass caused by a portion of the structure opposite their premises, and by running of trains thereon, or whether they sue for damages on the ground that a part of the easement of light, air, and access was interfered with when the road was erected and the trains began to run. That motion was denied, to which the defendants’ counsel excepted. The defendants’ counsel then moved that the case be stricken 'from the calendar and ordered to be tried at a special term, as an equity case. That motion was denied, and to that defendants’ counsel excepted.

The trial thereupon proceeded before a jury, and at the close of the evidence the court directed a general verdict for plaintiffs, and submitted to the jury certain specific questions as to the amount of damages sustained by the plaintiffs for the period during which the defendants’ railroad was in operation, and the value of the easement of air, light and access, so far as it was permanently taken by defendants.

Under such direction the jury found a general verdict for the plaintiffs, and answered the specific questions sub - mitted to them.

On the verdict plaintiffs moved for judgment as prayed for in the complaint, and defendants moved to set aside the verdict on various grounds. The defendants’ motion was denied, plaintiffs’ motion was granted, and a judgment entered entitled At a trial term of the court,” and reciting that the issues in the action had been brought on for trial before Mr. Justice Sedgwick and a jury at a trial term of the court, and the issues having been tried, and a written verdict for the plaintiffs having been rendered on October 14, 1885, on motion of plaintiffs’ attorney, it was adjudged that plaintiffs recover the damages found by the jury to have been sustained by the plaintiffs up to the time of the trial, from the operation and maintenance of the railroad structure, and enjoining and restraining the defendants from maintaining, or in any way using the elevated railroad structure ; that in case the defendants tender to plaintiffs for the purpose of execution by the latter, a conveyance to defendants of so much of plaintiffs’ easement in said streets as had been taken by defendants, and in case plaintiffs having executed the same and delivered it to defendants, said defendants shall pay to plaintiffs $15,000, with interest; or in case the plaintiffs shall not execute the said deed of conveyance when so tendered, then the injunction thereby granted shall not be in any way operative.

No finding of fact was made by the trial judge. The judgment was entered on the verdict of the jury. This the defendants claim was error.

Plaintiffs insist that the trial of all the issues before a jury was regular, for the reason that the action was an action to abate a nuisance, and that under section 968 of the Code, an issue of fact in such an action must be tried by a jury; the first question to be determined, is the nature of the action as shown by the complaint.

From an examination of the complaint in connection with the authorities in this state, we are of the opinion that the action must be held to be an equitable action to restrain the defendants from continuing to use and occupy with their railroad, the portion of the streets adjoining plaintiffs’ property. The character of the action is to be determined by the allegations of the complaint, and the nature of the relief demanded.

In this case, the allegations of the complaint are such as would entitle plaintiffs to an equitable judgment, enjoining the defendants from the unauthorized use of their property. In Henderson v. N. Y. Central R. R. Co. (78 N. Y. 423), the relief sought was first, damages ; second, the abatement of the use of the railroad, and the| removal of the tracks ; third, an injunction against run-' ning the trains, or, if the defendants are permitted to use the tracks, to do so only on condition that plaintiff should first be paid his damages. The action was sustained as an action in equity, the court saying that plaintiff had the right to invoke the restraining power of a court of equity to prevent a multiplicity of suits, and could of course recover his damages, as incidental to such equitable relief; and from that case and the cases cited by the court, it appears that the jurisdiction of equity in such cases is firmly established in this state, and that a court of equity, having once acquired jurisdiction, “ can proceed and give all the relief to which the plaintiff would in any action, and before any tribunal, be entitled.” The nature of the action, and the relief demanded therein are almost identical with the case at bar. The general term of this court in the late case of Clark v. Blumenthal (52 Super. Ct. 355), decided that the test of the method of trial is the nature of the demand for relief. In this case, the judgment actually entered after the trial by the jury was not a judgment for the abatement of a nuisance, but was an equity judgment restraining the defendants from continuing the acts complained of.

The complaint stated facts entitling plaintiffs to equitable relief and asked judgment for equitable relief, and the judgment entered by plaintiffs being a judgment for equitable relief, it cannot be claimed on appeal that the action is not an equitable action. The fact that the parties would be entitled to a trial by a jury of some of the issues involved in an action would not prevent the action from being an equitable action, but if one or more of the issues were so triable the sections of the Code hereafter cited provide a method by which either party can procure the trial of such issues by a jury.

The construction and operation of the elevated railroad were authorized by the legislature. Its route was fixed mider the authority of the legislature, and as such it was authorized, with the consent of the city of New York, to construct and operate its road. If, however, in such construction or operation it became necessary to use the property of an individual, it must acquire, either by purchase or proceedings under the general railroad act, the title to such property (Matter of Elevated R. R. Co., 70 N. Y. 327, 361), and any appropriation of private property without acquiring title to it, would be a trespass (Uline v. N. Y. Central & H. R. R. Co., 4 East. Rep. 34).

The action therefore being an equitable action to be tried as in equity, the question is presented whether the trial of such an action before a jury is such an error as would require a reversal of the judgment and the direc ■ tion of a new trial.

Trials of issues in civil actions are regulated by chapter X. of the Code of Civil Procedure, and section 965 of the Code provides that an issue either of law or of fact must be tried as prescribed in this chapter, unless it be disposed of as prescribed in chapter VI. of this act.” Section' 968 prescribes the actions that are triable by a jury, and section 969 the actions that are triable by the court. This last section provides that an issue of law in any action, and an issue of fact in an action not specified in the last section or wherein provision for a trial by a jury is not expressly made by law, must be tried by the court, unless a reference or a jury trial is directed;” and section 970 provides the manner in which a jury trial in such an action shall be directed. The party entitled to a jury trial may apply on notice to the court for an order directing all the questions arising upon such issues to be distinctly and plainly stated for trial, and upon the hearing of the application the court must cause the issues to the trial of which by a jury the party is entitled to be distinctly and plainly stated.

By section 971 it is provided that in an action where a-party is not entitled as of right to trial by jury, the court may in its discretion upon the application of either party, or without application, direct that one or more questions of fact arising upon the issues be tried by a jury, and may cause those questions to be distinctly and plainly stated for trial accordingly; and by section 972 it is provided that if the questions directed to be tried by the jury as prescribed in the last two sections, do not embrace all the issues of fact in the action, the remaining issues of fact must be tried by the court or by a referee..

By section 1022 it is provided that the decision of the court on the whole issue of fact must state separately the facts found and the conclusions of law, and it must direct the judgment to be entered thereupon; and by section 1225 it is provided that in an action triable by the court where one or more specific questions of fact arising upon the issues have been tried by a jury, judgment may be taken upon the application of either party as follows : First. “ If all the issues of fact in the action are determined by the findings of the jury, or the remaining issues of fact have been determined by the court or a referee, an application for judgment may be made upon the whole issue as upon a motionand second, “if one or more issues of fact remain to be tried, judgment may be rendered upon the whole issue at the term of the court where, or by direction of the referee, by whom they are tried.”

I have stated the provisions of the Code controlling the trials of civil actions in full, and these sections contain the only provisions that authorize a jury trial in actions not specified in. section 968 ; and except where the proceedings authorized by those sections have been taken the provisions of section 969 apply and the issues must be tried by the court.

The system for the trial of actions provided by the sections above mentioned, preserves the distinction between actions which were formerly called equitable, and of which the court of chancery had cognizance, and those called actions at law which were determined in a court of law, although both classes óf actions are now tried by the same court.

The methods of the trial of the two classes of actions are very different. The legislature has provided that the issues of fact in an equity case must be tried by the court, unless the court should send either one or more of the issues of fact to be tried by a jury, in which case an order must be made specifying the issues to be passed upon by the jury, and for that purpose the questions to be answered by them must be distinctly stated.

The case of Hammond v. Morgan (3 East. Rep. 868), was an action for the recovery of certain letters patent, &c., claimed to have been delivered by the plaintiff to defendant, and the return of which were demanded. The issues were brought on for trial by the plaintiff at a special term, and were, on motion of defendant, sent by the special term to a jury term for trial. No issues were framed, and a general verdict having been rendered on the trial before a jury in favor of plaintiff, the court entered on such verdict an equity judgment directing the return of the instruments, to recover which the action was brought. A motion was made to set aside such judgment as irregular, which was denied in the court below, but which was reversed by the court of appeals. In the opinion in that case, Earle, J., says : “In that event (viz., the action being treated as an equity action), the case was properly noticed at special term, and should there have been tried before the judge without a jury, unless at his instance, or upon motion of one of the parties, some or all of the issues were ordered to be tried before a jury, and for that purpose the questions to be answered by them should have been distinctly framed. In such a case, the issues are sent to the jury, for the aid and information of the court. If the facts thus submitted to and answered by the jury, together with the facts admitted by the pleadings, cover the whole case, so that no further facts need be proved for the information of the court, motion may at once be made for judgment,”

In the case at bar, there was no order of the special term sending issues to the jury for trial; no issues were Eramed to be tried by a jury. The plaintiff brought the base on for trial, where it was not triable, and where, despite the exception of the defendant, it was tried not as an equity case, but as an action at law..

Under the sections of the Code above cited, and the decision of the court of appeals in Hammond v. Morgan, we think the motion of the defendants’ counsel that the case be stricken from the calendar, and ordered to be tried at special term as an equity case, should have been granted.

Plaintiff insists, however, that the defendant, by: its proceedings prior to making the motion, had waived its right to demand a trial before the court without a jury. We have examined the facts upon which the plaintiff claimed the defendant waived such right, and do not think they can be said to have that effect. The action, as before stated, was for damages sustained up to the time of the commencement of the action, and for an injunction, and the plaintiff, by waiving his claim for equitable relief, could have tried his action before a jury for the damages therein claimed, and it appears that defendant made the motion for the trial to which it was entitled as soon as it was developed by the opening of the case, that the equitable relief would be insisted on. This, we think, was in time. The fact that one of the defendants, after plaintiff had noticed the case for trial at a jury term, also noticed the case for trial at the same term, was not a waiver of his right to object when the case was called on for trial (Wheelock v. Lee, 74 N. Y. 495).

The case of People v. Metropolitan Telephone Co. (31 Hun, 596), does not help the plaintiff. That was plainly an action to abate a nuisance, and was one of the actions specified in section 968 of the Code, which was triable before a jury. But in that case it was held that a judgment which included equitable relief in directing the removal of the obstructions in the streets, could not be sustained on the general verdict for plaintiff, and to authorize the court to interfere with the existence of the poles there should have been a finding in some form to show which of them, and to what extent they exceeded the necessary bounds prescribed by the statute.

We are also of the opinion that the verdict of the jury in the form in which it was rendered was not sufficient to sustain the judgment entered thereon.

The answer of the defendants railway companies put in issue the allegations that the structure described in the complaint diminished and impaired the light, air, and ventilation of the plaintiff’s premises and that the structure or operation of the road appropriated any of the plaintiff’s property, and before plaintiff was entitled to the relief demanded there must be some finding of fact that plaintiff’s easement in the street was occupied by-defendants.

On the trial there was evidence tending to show that that easement was not appropriated or used by defendants. That question was not submitted to the jury, nor was there any finding of fact on that issue. In the case of Hammond v. Morgan (supra), it was held “that if the finding of the jury together with the facts admitted in the pleadings, do not cover the whole case, and other issues remain to be tried, or other facts requisite for equitable relief remain to be proved, then the case must be regularly brought to a. hearing before the court, when the court may or may not adopt the finding of the jury and other facts may be proved, and in such case the court must make findings of fact and law to which exceptions may be taken by either party desiring to appeal.”

It appears in this case that after all the evidence was in, the trial judge in charging the jury said, “that as matter of law plaintiff sustained injury to some extent, if nominal only, that would require you should find for the plaintiff, and therefore your answer to the first question, ‘ Do you find for plaintiff V will be ‘Yes.’” That was simply a direction to the jury to find that plaintiff had been injured by the defendant, and there was no finding of the jury that the structure of the Elevated Railroad Company was an impairment of, or an appropriation of the plaintiff’s easement.

As we are of the opinion, however, that the action was improperly brought on for trial before a jury, the judgment must be reversed on that ground, and a new trial ordered, with costs to the appellants to abide the event of the action.

O’Gorman, J., concurred.  