
    Sommer v. New York El. Ry. Co. et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 15, 1891.)
    1. Jury—Trial by—Equitable Issues.
    Plaintiff, a vendee of real estate, took from the vendors an assignme nt of all their right to any damages arising from operation of defendants’ elevated railroad in front of the premises conveyed. In an action against defendants, she asks for an injunction in case of non-payment of the damages to the fee, and those incidental thereto, for the past damages accruing after the reception of her title, and also for the assigned damages sustained by her grantors, field,'that the cause of action was strictly legal as to the assigned damages, which had been severed from the realty, and in no way connected with her equitable right to an injunction in case of non-payment of future damages, and that defendants were entitled to a trial by jury in respect of the legal cause of action, without regard to the joinder of the two causes of action in one suit.
    2. Same—Question of Nuisance.
    Where a complaint seeks an injunction to restrain defendants from operating their elevated railroad in front of plaintiff’s premises until payment of all damages sustained by the plaintiff by reason thereof, the cause of action is equitable only, and defendants will not be entitled to a trial by jury upon the ground that the complaint states a nuisance, when its allegations are as consistent with the action of trespass as with that of nuisance.
    Appeal from special term, New York county.
    Action by Caroline W. Sommer against the New York Elevated Railway Company and others. From a judgment granting an injunction and damages defendants appeal.
    Argued before Van Brunt, P. J., and Daniels, J.
    
      Davies & Rapallo, (Julien T. Davies, Samuel Blythe Rogers, and Byron Traver, of counsel,) for appellants. Sackett & Bennett, (Charles Gibson Sackett, of counsel,) for respondent.
   Van Brunt, P. J.

This action was brought to recover damages, past and future, arising from the erection of the railroad in front of the premises 368 Ninth avenue. The plaintiff purchased this property On the 2d of July, 1888. She is the wife of Louis Sommer, one of the four heirs at law of Philip Sommer, deceased, who died in 1874 intestate, seised in fee of the premises, and leaving him surviving four children and a widow, since deceased. The children continued to hold the title to and remained in possession of the premises until the 2d of July, 1888, when the property was conveyed to one Charles A. Flammer, who on the same day conveyed the premises to the plaintiff. This action was begun on the 12th of February, 1889. On the 6th of February, 1889, by an assignment in writing, the children of Philip Sommer, the tenants in common, sold and transferred to the plaintiff all their right, title, and interest in and to any damage arising by reason of the maintenance and operation by the defendants of the elevated railroad and structure in front of said premises. The plaintiff asks for an injuction, in case of non-payment of the damages to the fee, and incidental thereto, for the past damages, accruing as soon as she acquired the title to the property, and also for the damages which had accrued to her predecessors in title, and which had been assigned to her. The answer alleged, among other things, that for the injuries or cause of action alleged in the complaint, the plaintiff had a complete and adequate remedy at law. When the case came on for trial, the counsel moved, among other things, that the issue of past damages, under the assignment, be sent “to the circuit of this court,” (the counsel evidently not being aware that the circuit court is not a part of the supreme court, but an independent tribunal, for trial by jury,) upon the ground that the defendant was entitled to such form of trial as a matter of right. This motion was denied, and in such denial we think error was committed.

The action for past damages was strictly an action at law. Such right to claim damages had been severed from the realty, and the plaintiff had procured title to the same by assignment. It was in no way connected with or incidental to her right to obtain an injunction in case future damages to the fee were not paid. The cause of action for those damages which have been assigned was separate and distinct. The right to their recovery by the conveyance of the premises had been severed and disconnected from the right to seek equitable relief against the continuance of the trespass. Under these circumstances, the defendants had a right to a trial by jury in respect to that cause of action. This principle seems to have been distinctly enunciated in Wheelock v. Lee, 74 N. Y. 495, where it is held that the joinder of an equitable cause of action with others purely legal does not deprive the defendant of a right to a trial by jury; and that when such an action is brought to a trial at special term, and the defendant demands a jury trial, the judge must determine whether any of the grounds upon which a recovery are sought are such as, at the adoption of the constitution, were redressed by an action at law, and, if so, should direct the case to be tried by a jury at circuit, or, at all events, should refuse to try the cause without a jury. By joining the legal cause of action with the equitable one, the plaintiff has no power to deprive the defendants of the constitutional right to a trial by jury. Although the plaintiff may himself, by joining such causes of action, be deprived of the right to a trial by jury, such joinder in no way affects the rights of the defendants. This case, so far as the assigned damages were concerned, was an action for damages for a past trespass in respect to which no equitable relief could be granted, and the defendants Were entitled to a jury trial in respect thereto.

The point that defendants were entitled to a jury trial as to the whole cause of action, because the complaint alleged a nuisance, is not well taken. The allegations in the complaint are just as consistent with the action of trespass as with the action for a nuisance. There is nothing which stamps the complaint with the character of an action for a nuisance, such as. there was in the-case of Libmann v. Railroad Co., 13 . Y. Supp. 378; and, if there was any doubt upon that proposition, the defendants should have called upon the plaintiff to declare, before, proceeding with the trial, whether he claimed equitable relief because of a continuing trespass or because of a nuisance. Under such circumstances, if the plaintiff bad claimed damages upon the ground of a nuisance, then clearly the defendants would have been entitled to a jury trial, but such did not appear. We think that the judgment must be reversed, and a new trial ordered, with costs to appellants to abide event.  