
    Michael Bergman, Resp’t, v. The Manhattan Railway Co., et al., App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed May 4, 1891.)
    
    Right to trial by jury—Both legal and equitable relief.
    When a plaintiff brings an action for both legal and equitable relief in respect of the same cause of action, the case presented is not one of right triable by jury under the constitution.
    This appeal is from a judgment rendered at the equity term of the court after a trial of the issues. The action was brought to enjoin the continuance of the defendants’ elevated railroad in front of the plaintiff’s premises on Sixth avenue, in this city. It was the ordinary suit by an abutting owner, and the judgment is in the usual form, restraining the defendants from operating the road unless, within a specified time, they pay the sum of $5,500 and obtain a grant and release of the easement.
    The defendants appeal.
    
      Davies & Rapadlo, for app’lts; Peckham & Tyler, for resp’t.
   McAdam, J.

—The principles regulating the rights and liabilities of abutting owners, with reference to elevated roads, have been so often declared that the adjudications have become too familiar to require citation. It is necessary only to refer to the points which it is claimed are not embraced within the general principles decided.

At the opening of the trial the defendants insisted that they were entitled to a jury trial by the constitution of the state and the provisions of the Code of Procedure. The claim was over. ruled and defendants excepted. The ruling was proper. _ This court decided in Sears v. The Met. El. R. R. Co. et al. opinion, February general term, 1891, that “when a plaintiff brings an action for both legal and equitable relief, in respect of the same cause of action, the case presented is not one of right, triable by jury under the constitution.” Citing Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y., 319 ; 7 N. Y. State Rep., 203.

This disposes of the only novel question raised. The evidence fully sustains the findings of fact, and the rules of law were properly observed and applied by the trial court . The exceptions taken by the defendants’ counsel are without merit, and the judgment appealed from must be affirmed, with costs.

Sedgwick, Ch. J., concurs.  