
    Robert F. Shepard et al., App’lts, v. The Manhattan Railway Co. et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed March 1, 1892.)
    
    1. Railroads—Elevated—Jury—Code Civ. Pro., § 970.
    The amendment to § 970 of the Code by chap. 208, Laws 1891, does not apply to the trial of equitable causes, but merely widens the right to a jury trial in those cases to which the section was previously applicable.
    .3. Same.
    In an action to restrain the maintenance of an elevated railroad, the defendant is not entitled, as matter of right, under such amendment, to a trial by jury of the question of past damages, but the granting of a motion therefor is still a matter of discretion with the trial court.
    (Earl, Ch. J., Peckham and O’Brien, JJ., dissent.)
    Appeal from order of the supreme court, general term, first department, affirming order directing the trial by jury of past or xental damages, unless plaintiff stipulates to waive such damages.
    
      W. G. Peckham, for app’lts; Julien T. Davies, for resp’ts.
   Gray, J.

This is one of the many actions brought to restrain "the defendants from maintaining and operating their railway in '.front of the complainants’ premises, with an accompanying demand in the complaint for incidental relief by way of past damages. A motion was made by the defendants for an order directing the questions as to the value of property and as to damages which the plaintiffs may be entitled to recover to be distinctly stated for "trial by a jury, pursuant to § 970 of the Code of Civil Procedure. 'The court thereupon made an order which recited that the defendants were “ entitled as a mattes' of right to an order directing "the framing of a question for trial by a jury as to the past or rental damages,” and that no question of the value of property :arose upon the pleadings; and thereupon ordered that the motion -should be granted, unless the plaintiffs- stipulate to waive absolutely all right to recover such past or rental damages, in which •event the defendants’ motion should be denied. Each party appealed; the plaintiffs, because of the requirement of a waiver as a -condition of a denial of the motion, and the defendants, because itheir application was denied as to the value of property.

The general term affirmed the order as made. A construction. of § 970 of the Code, as amended by the legislature in 1891,. (Oliap. 208, Laws of 1891), is involved. As it stood, its provisions were made to apply to a case “ where a party is entitled by the constitution or by express provision of law to a trial by a. jury of one or more issues of fact, in an action not specified in § 968." The amendment of 1891 added to that language these-words, or where one or more questions arise on the pleadings as-to the value of property, or as to the damages which a party may be entitled to recover.” The section was, also, so further amended as to call for an order “ directing all such issues or questions ” to be-stated for jury trial. By such alteration in the reading of the section, caused by the amendment of the legislature, the defendants contend that its provisions are made applicable to such actions-as these and entitle them, as a matter of right, to trial by a jury as to all questions of value, or of recoverable damages. I do not see how we can sustain the court below, without very much misapprehending the effect of the section. Lately, in the Lynch case,, we had occasion to consider the question of the right to the trial by a jury as to past damages, under this section as.it read before-the amendment of 1891. We held that the constitutional guaranty of trial by jury, which was invoked in support of the application there, did not apply. It was there considered, following the old rule, that as the action was one for a court of equity to determine, its jurisdiction continued, beyond its decree upon the equitable cause of action which granted the equitable relief, to assess, in its own discretion, the damages which might appear to have been sustained. As that jurisdiction had existed prior to the adoption of the constitution, the clause preserving inviolate the right of jury trial, as it had existed, did not apply. In this class of actions we have held the cause of action to be single and to constitute a claim for equitable relief.

The question then becomes this; can the section as amended be made to apply now to such purely equitable actions ? In so considering it, we may disregard the question-of constitutionality discussed by counsel. If we fail to find in the amendment of the section that the legislature has deprived the court of any of that equitable jurisdiction which it has always possessed and which, lately, we have recognized as continuing, such discussion becomes needlesss.

I think that this section never did apply to actions of a purely equitable nature, as are these, and that the amendment did not make it applicable. This conclusion seems logical and inevitable upon a careful consideration of its connection with the other-sections, as well as from its reading. • If this section now applies to purely equitable actions and creates a right in the party to have a trial by a jury of questions relating to the amount of damages,, then the power' of the court in equity is materially shorn and in a respect which is -fundamental. -For the verdict which the jury may render would be by the section made conclvsive in the equity action, and thus we would have a proceeding quite different from what was formerly a mode of inquiry to aid and to inform the conscience of the court in proceeding to assess the damages. It, would no longer be permitted to disregard the verdict if against its conscience, and to render a decree contrary to it, but would be ■compelled to accept it Only legal errors could be availed of to ■oppose the verdict In an action upon the equity side of the •court, in which the cause of action is one mainly and primarily for equitable relief, and where the recovery of damages is incidental to the main relief to be granted, shall we hold, in the absence of unmistakable language, that the legislature has deprived the court of that part of its ancient jurisdiction which authorized it to adjudge such incidental relief in damages as it thought proper, or to withhold it? I think it clear that we should not. I do not- think that any of the powers vested in courts under the constitution should be taken away by implication. • Yet .such would be the result if we affirm the orders below. We .should have to imply a legislative intention from the interpolation of the words in the section to take away some of the equity powers heretofore possessed by the court. The amendment does not convey such an intention ex proprio vigore, and to attach to it ■a meaning which would deprive the court of a power so important and which courts of equity jurisdiction have so long possessed, would be contrary to sound principles of statutory construction. To authorize and justify a construction of such destructive tendency we should have language clearly and unmistakably evidencing that as the purpose of the legislative body.

I think, too, that it is unnecessary to hold that the amendment in question has brought about any such result. The section in ■question, as it fairly reads, adds to the cases where trial by a jury ■of one or more issues of fact is a matter of- right, by the constitution or by express provision of law, questions which arise on the pleadings as to value, or as to recoverable damages, and which •are not precisely issues. The questions which arise upon the pleadings in this class of actions, as to the damages the plaintiff should recover, are not questions which either enter into the determination of the right to the equitable relief, or which come up for determination in the alternative, if equitable relief is denied. Allegations of damage from the trespass, or from the invasion of the plaintiff’s rights, are necessary; but the court .is not concerned with the amount in the trial of the cause of action. It looks to them no further than to determine if they are of such substance as to warrant the equitable intervention of the court Hence, it is apparent that a finding by a jury as to the amount of damages in such an action is quite unnecessary. It has no place in the trial*of the issue and could only be proper after an affirmative decision upon the right to the injunction, and in order to assess the damages which may be incidentally awarded.

In the Lynch case we held that the section, as it was, did not require a trial by a jury in these actions, and authority in its amended reading must be found in the mere addition to the cases where the party was' entitled to have issues of fact stated and tried by a jury of other cases in which he might have any questions as to value, or as to the' amount of damage, similarly stated .and tried. Preceding this section is § 968, which requires a trial by jury in certain actions, unless waived or referred, and § 969, whicti provides for the trial by the court of an issue of law in any action, or of an issue of- fact in an action not specified in § 968, or wherein trial by jury is not expressly provided for by law.

Then follows the present section and, taken together with the preceding sections 968 and 969, they comprehend and provide for the mode of trial of all legal actions in which are presented issues of fact and of law. By the amendment of § 970 the legislature confers the further right upon a party to have specific: issues framed for a trial by a jury where questions as to value, or of recoverable damages, arise upon the pleadings; not, however, by an obvious implication from the recital premising the provision of the section, in actions in equity, where the actual and main issue is the right upon the allegations to equitable relief by way of an injunction; but in those actions where such questions-so affect the main issue between the parties as that the cause of action for equitable relief being determined adversely, the court may proceed to grant some legal relief, or to award damages; or where, to a legal claim, an equitable defence is interposed, in which ■ case the court might direct any question, or the issue of fact, to be tried by a jury; or where in an action for specific performance damages for breach of contract are sought. The section would cover all such and other cases which might be imagined. The very next following section (971) seems to recognize the integral right and jurisdiction of a court sitting in equity to dispose-of equitable actions in its own way. It reads that “ in an action where a party is not entitled, as of right, to a trial by jury, the-court may, in its discretion, upon the application of either party, or without that application, direct that one or more questions of fact arising upon the issues be tried by a jury and may cause these questions to be stated, etc.”

Does not that section directly apply to such actions as these and recognize the right of a court of equity and authorize it to-avail itself of the aid of a jury to inform its conscience as to any assessment of damages ? Observe the distinction between § 970, which makes the finding of a jury “ conclusive in the action,” and § 971, which contains no such provision. It seems to me very clear that we cannot give to § 970 the meaning attached to it below, and contended for here, without more or less importing contradiction into the legislative provisions as contained in it and. the following section.

It was formerly the rule, and we reasserted it in the Lynch case;, that in an equity cause trial by a jury is not a matter of right. Section 970 was deemed not to have altered the rule, and § 971 expressly authorizes. the court, in the exercise of its discretion,, to send questions of fact arising upon the issues for a jury trial. Does it not follow, logically, if not irresistibly, that the amendment of § 970 does not apply to the trial of equitable causes, but merely widens the right to a jury trial in those cases to which: the section was previously applicable. It is a conclusion which is the safer, therefore, and the wiser to adopt. I say wiser, because if we adopt the literal reading of the section it might work mischief and delay. A multitude of questions might be raised as to its applicability to cases to which it ought never to be permitted to extend. Such might be cases of equitable accountings ; or where the cause involved a long account, which would be compulsorily referable; or of stockholders’ actions against directors or trustees, to compel them to make good,losses of the corporation alleged to be due to mismanagement; op cases where the amount of the damages is not stated for a recovery, but as a videlicet to allegations of wrong doing: as of trustees, or of corporate directors.

I think, therefore, we must conclude that it was error for the court below to hold that the defendants were entitled, as matter cf right, upon their application under § 970, to an order stating the questions of past damages for trial by a jury, and that the granting of such an order still rests in the sole discretion of the trial court sitting in equity.

The orders appealed from should be wholly reversed and the application under § 970 denied, with costs to the plaintiffs in the action.

Andrews, Finch and Maynard, JJ., concur; Earl, Ch. J., Peckham and O’Brien, JJ., dissent  