
    LIBMAN v. MANHATTAN RAILWAY CO.
    
      N. Y. Supreme Court, General Term, First Department.
    1. Constitutional law; trial by jury.] If a cause of action is one in which defendant has a constitutional right to trial by jury, he cannot be deprived of such right because plaintiff demands equitable relief.
    
    2. The same; nuisancel\ Although equitable relief is sought against the continuance of a nuisance, defendant has a constitutional right to a trial by jury to determine its existence and the damages thereby occasioned.
    
    3. Motion to compel election; different modes of triall\ In an action by a property owner for an injunction and damages against an elevated railroad in front of his premises, if the complaint contain allegations entitling plaintiff to proceed for a nuisance as well as trespass (the defendant being entitled to a jury trial if the case is for nuisance), the plaintiff should be compelled to elect, upon defendants’ motion made at the opening of the trial at special term, whether he will proceed as for nuisance or trespass.
    4. The same ; waiver.] Going on with the trial does not impair defendants’ exception to the overruling of his motion to compel such election.
    
      Appeal by defendants to the General Term from a judgment of the Special Term.
    The action was brought by Joseph Libman and ■others, against The Manhattan Railway Company and The Metropolitan Elevated Railway Company to enjoin the continuance and operation of the defendant’s elevated railroad in front of premises Nos. 191, 193 South Fifth Avenue, in the city of New York, and to recover damages therefor.
    At the opening of the trial, defendants moved to strike the cause from the equity calendar on the ground that it was an action for a nuisance and triable by-jury. The motion was denied and defendant excepted. The defendants then moved that plaintiffs should be compelled to elect whether they would proceed on the ground that the construction and operation of the road was a nuisance or a trespass. This motion was also denied and defendants excepted.
    The complaint was as follows :
    
      First. That each of the defendants is a domestic corporation, duly incorporated, organized and existing by and under the laws of the State of New York, having its place of business and residence exclusively in the city of New York.
    
      Second. That the plaintiffs for some time have been and now are the owners in fee of the following described premises, situated upon South Fifth Avenue in the city of New York, to wit: (Then follows description of premises.)
    
      Third. That the said premises above described were conveyed to plaintiffs by deed of Frank A. Seitz, duly recorded in the office of the register of the city and county of New York.
    
      Fourth. That South Fifth Avenue is and Samens Street was a public street, and was laid out, formed and opened under and in pursuance of the provisions of the :act entitled “An act to reduce several laws relating particularly to the city of New York into one act,” passed April 9, 1813, and the statutes amendatory of and supplementary to said act.
    That plaintiffs and their predecessors in title have paid assessments' for the curbing, sewering, paving, grading and flagging of said South Fifth Avenue, and for the widening of Samens Street, and have paid large sums of money-to the city of New York for other -assessments and taxes upon said premises, in reliance upon the right to have the full enjoyment of said South Fifth Avenue as a public street, as hereinafter mentioned.
    That the interest and title which the City of New York has in and to said South Fifth Avenue was acquired and received by the city in trust for the maintenance of said street as a public street and highway, :and in such manner as public streets or highways are generally used and maintained. And plaintiffs aver that they are and were seized and possessed of an easement in said street to that extent, and as hereinafter .stated, and were and are entitled to the right to have such street kept and used as a public street, and only as such, and the right to the free and undisturbed enjoyment of the same for the purpose of light, air and ventilation of the said premises, and of the right to the free and uninterrupted passage along the said street as a public street for the benefit of said' premises, and of the free and unimpaired access to the said premises,'and to be protected against interference with the enjoyment by plaintiff and by the said premises of such rights and ■advantages, and to be protected against any use or ■appropriation of said street for or by a nuisance, or for any purpose detrimental to the quiet enjoyment and occupation thereof, not required for the use of said ■street as a public street.
    
      Fifth. That as an incident and appurtenant to plaintfils’ ownership and occupancy of said premises, the plaintiffs have and had in said South Fifth Avenue fronting the said premises above described, the right, interest and easement to its free and unimpaired use, for the usual and ordinary purposes of a public street or highway, and to exemption from noise, odors, influx of smoke and cinders, obstructions, extraordinary jar-rings and such other disturbances and annoyances as are not incident to or connected with the ordinary use-of a public street, and to the unobstructed ingress and egress to and from said premises, and to all other rights, privileges, benefits and advantages, to which the-owners of property abutting on any of the publié streets, in said City of New York are entitled in and to said streets, and which these plaintiffs would have enjoyed, but for the wrongful acts of the defendants as hereinafter set forth.
    
      Sixth. Upon information and belief, that as plaintiffs-are advised, they were and are seized and possessed of the portion of South Fifth Avenue immediately in front of and adjoining the premises before described, to thecentre of said Samens street.
    
      Seventh. That upon said premises was during the-times later mentioned, and now is erected a large and valuable building.
    
      Eighth. That the defendant, The Metropolitan Elevated Railway Company, is the owner of a railroad running through South Fifth Avenue and other streets and avenues in the City of New York, and past and in front, of plaintiffs’ premises.
    
      Ninth. That the said railroad is now, and has been since the month of June, 1879, ™ the possession of and operated by the defendant, The Manhattan Railway Company, as the lessee of the defendant, The Metropolitan Elevated Railway Company.
    That the rights of the said defendant, The Manhattan Railway Company as such lessee are derived from a certain agreement and lease made by the said Metropolitan Elevated Railway Company to the said Manhattan Railway Company, dated May 20, 1879, and recorded in the above mentioned register’s office on June 17, 1879, in Liber. 1493 of Conveyances, page 311, and a certain contract modifying the said lease, in respect to the-rents payable thereunder.
    
      Tenth. That the defendant, the Metropolitan Elevated Railway Company had constructed, and had been lor some time' prior to said June 17, 1879, operating a railroad in South Fifth Avenue in front of said premises: of different construction. Said present railroad is supported by lines of columns placed in the sidewalks, and said columns support cross-girders and frameworks, upon which are laid railroad tracks. That the trains, and locomotives of said defendants’ in passing plaintiffs’ premises produce, and have hitherto produced a flickering and obscurity in the light, and .deprive, and have hitherto deprived plaintiffs of the beneficial use of such light as does come to said premises.
    That since said June 17, 1879, the said former railroad and the present railroad and tracks, have been operated and used by the Manhattan Railway Company with the consent of the Metropolitan Elevated Railway Company. That the operation of said railroad is not an ordinary street use of said street authorized by law, and amounts to a purpresture of said street.
    That after said June 17, 1879, the defendants rebuilt the old structure and constructed new structures and obstructions, which alterations and new structures and obstructions were of a new, special and additional damage to the plaintiffs ; and the defendants at a time since the original building of the road began to run and have since continued to run, additional cars and engines in excess of the number originally run, and run the same with greater frequency, and run the same in such a. manner as to cause new and additional damage to plaintiffs.
    That one of said columns is located in the sidewalks in front of plaintiff’s premises. That defendants have ■erected and maintain a station with a covered platform near said premises which greatly interfere with the beneficial use of said premises. That the locomotives •of the defendants in stopping and starting at said station pour forth an extraordinary amount of cinders upon said premises, and produce an unusual and extraordinary amount of noise.
    That said structure as it now exists, and as above •described, has been erected and maintained without legal right, and is a special nuisance and injury to plaintiffs and their premises.
    
      Eleventh. That on the road thus constructed the defendants every day ran and still do run many trains •of cars propelled by steam.
    
      Twelfth. That said railroad and structure greatly obstructed, and still do greatly obstruct the said South Fifth Avenue and the passageways to and from said buildings; that they excluded and still do exclude the light and air from the same, that smoke escaped and was unnecessarily poured, and still does escape and is unnecessarily poured from the engines, and grease, oil, water, cinders, ashes and other objects fell and were unnecessarily poured, and still fall and are unnecessarily poured from passing trains upon said premises. That the structure caused, and still does cause an additional and extraordinary amount of snow and ice to form, and lie upon, and in front of said buildings and premises. That the trains made and still do make a loud and disagreeable noise, and shook and still shake said buildings, and caused and still cause a vibration, which impaired and weakened, and still impairs and weakens the said buildings, and endangered and still •endangers their stability.
    
      
      Thirteenth. That said road and structure impose and did impose a new and additional burden upon said property not included in the easement in said'street granted to the public, and that the legislature had no right to authorize the same without compensating plaintiffs for their property thus taken.
    1 Fourteenth. That the defendants have never taken any proceedings to condemn the interest of plaintiffs or their predecessors in title in South Fifth Avenue in. front of said premises for the use of their railroad.
    
      Fifteenth. That but for the wrongful acts and injuries done and committed by above defendants as above set forth, the fair market value of plaintiffs’ said premises would be upward of twenty-five thousand dollars-in excess of what it now is, and the rental value thereof upward of twenty-five hundred dollars per annum in excess of what it now is, and that the erection of said railroad and structure has diminished, and will continue to diminish the said rental value of said premises at least twenty-five hundred dollars per year, and plaintiffs have already sustained damages in at least the sum of two hundred and fifty dollars for damages sustained, by plaintiffs up to the present time for injuries caused by vibration and noise, and seven hundred and fifty dollars for the other injuries hereinbefore stated, and have sustained damages in the total amount of at least, the sum of one thousand dollars.
    
      Sixteenth. That the property of the defendant, The. Metropolitan Elevated Railway Company, is mortgaged for all that it cost or is worth, and the defendant, The-Manhattan Railway Company, has little or no property except stock in its co-defendant, and in a similarly mortgaged corporation. That defendants have little if any pecuniary responsibility, and that the injuries complained of are and will be constant and continuous, and that to prevent a multiplicity of suits, and to afford plaintiffs adequate relief, the equitable interference of this court is necessary. That upwards of four hundred suits are pending against the defendants, in which damages .amounting to many millions of dollars are claimed. Wherefore, etc.
    
      Edward C. James, for defendant and appellant.
    The action was for a nuisance,' and defendant had a right to a trial by jury (Citing Heeg v. Licht, 80 N. Y. 579, 582; Campbell v. Seaman, 63 Id. 568; Hudson v. Caryl, 44 Id. 553; Dorr v. Dansville Gaslight Co., 18 Hun, 274; People v. Met. Tel. Co., 31 Id. 596, 600; Davison v. Associates, etc., 71 N. Y. 334, 340; Jefferson v. New York El. Ry. Co., 33 State Rep. 916).
    
      Peckham & Tyler, for plaintiff and respondent.
    [On motion for reargument respondent cited the following cases against defendant’s right to a jury trial: Coggswell v. N. Y. &N. H. R. Co., 105 N. Y. 319 ; Dillon v. Acme Oil Co., 18 State Rep. 477 ; Olmstead v. Rich, 25 Id. 271 ; Watson v. Manhattan Ry. Co., 53 Super. Ct. 137; Kenkele v. Manhattan Ry. Co., 29 State Rep. 95; Sanders v. Manhattan Ry. Co., 31 Id. 544;Werfelman v. Manhattan Ry. Co., 32 Id. 682; Johnson v. Manhattan Ry. Co., Id. 685 ; Parker v. Lancy, 1 T. and C. 590].
    
      
       See note in 21 Abb,-N, C. 278.
    
    
      
       See note in 25 Id, 195 ; see also, Code Civ. Pro. § 970 as am’d in 1891.
    
   Van Brunt, P. J.

This action was brought to enjoin the continuation and operation of the defendants” •elevated railroad in front of certain premises in the city of New York, the allegations of the complaint being that said structure, as it now exists and as above described, has been erected and maintained without legal right, and is a special nuisance and injury to the plaintiffs and their premises; and the complaint demanded that the amount of the damages sustained by reason of the existence of said road and structure should be ascertained, and that they have judgment against the defendants therefor, and also for an injunction perpetually enjoining and restraining the continuation of the nuisance.

At the commencement of the trial the counsel for the defendants moved to strike the case from the Equity calendar upon the ground that it was substantially an action for damages, and that it be sent to the circuit for trial by jury. This motion was denied, and the defendants excepted. The defendants’ counsel also made the same motion, upon the ground that it was an action for a nuisance, which was denied and an exception taken;

Thereupon the defendants’ counsel moved the court to compel the plaintiffs to elect whether they would proceed upon the basis that the construction and operation of the elevated road was a nuisance, or on the basis that the legislative authority was irrelevant and no defense, and therefore the defendants’ acts were in the nature of a trespass. The court denied the motion, and defendants’ counsel duly excepted.

The latter ruling we think was. error. If this was an action for a nuisance, the defendants were entitled, as matter of right, to a jury trial (Hudson v. Caryl, 44 N. Y. 553). It was also held in that case that, if the complaint is in form as for equitable relief against the continuance of"a nuisance, and the prayer for damage may be regarded as incidental thereto, yet as the existence of an alleged nuisance and the amount of damages were "both inquired of by a jury before the adoption of the present constitution, the constitutional guaranty of trial by jury applies to such an action as one of the cases in which it has been heretofore used.

Under these circumstances, there being allegations in this complaint which entitled the plaintiff to proceed as for a nuisance, as well as for a trespass, and the defendants being entitled to a jury trial if the action proceeded as one upon a nuisance, it was matter of right, before proceeding with the trial, that it should be determined upon which ground the plaintiffs proceeded. Therefore, when the defendants asked that the plaintiffs should elect whether they proceeded as fora nuisance or as upon a trespass, such election should then have been made by the plaintiffs in order that it might be determined as to whether the defendants were or were not entitled to a jury trial. The defendants were not compelled to go into the trial, the case to be treated at the option of the plaintiffs as an action for a nuisance or as an action for a trespass, and they might, with perfect safety, have stopped then and there and refused to go on and relied upon their exception. Merely because they did thereafter go on in no way impaired their rights or took away the valid exception which they had taken at the commencement of the trial. They were placed in a position in reference to the trial of the cause which they should not have been made to-assume.

They were entitled to know, at the outset, whether the plaintiffs were proceeding upon a cause of action entitling the defendants to a jury trial or not.

There are many cases to be found in the books in which it has been held that where a plaintiff brings, suit in equity, although ordinarily he may be entitled to a jury trial, he has thereby waived the same, and cannot demand as matter of right under these circumstances the benefit of a trial by jury.

But no case has been found, and we do not see how it could be followed if it had been, which holds that, because a plaintiff has filed a bill in equity for relief for a cause of action in respect to which the Constitution provides that the defendant is entitled to a jury trial,, he can, by so doing, deprive the defendant of such jury trial.

We think, therefore, that for the error which-was. committed, without considering the other questions in the case, the judgment must be reversed anda new trial ordered, with costs to the appellant to abide the event.

Brady and Daniels, JJ., concurred.  