
    ELIZABETH R. COGSWELL, Respondent, v. THE NEW YORK, N. H. & H. R. R. CO., Appellant.
    
      Jury trial of issue of nuisance—luhen matter of right, though equitable relief be asked.
    
    In an action for the abatement of a nuisance, the recovery of damages, and for a perpetual injunction, though final judgment must, after a trial of the issues, be given by the court at special term, the plaintiff is entitled as a matter of right, to a jury trial of the issue of nuisance or no nuisance, and the finding of the jury on that issue is therefore, under § 970, Code Civ. Proc., conclusive in the action.
    Hudson v. Caryl (44 N. Y. 553), followed.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided December 17, 1886.
    Appeal from order awarding issues to be tried by a jury.
    Action to abate a nuisance, to recover damages sustained by reason thereof, and seeking a perpetual injunction, by decree, from the parrying on of any trade or occupation offensive to the senses or injurious to the plaintiff’s property. The action has been before tried at special term and thence appealed (See 48 Super. Gt. 31).
    
      William E. Barnett, attorney, and Henry H. Anderson, of counsel for appellant:
    I. Any right to trial by jury was waived by going to the former trial (§ 1009, Code Civ. Proc.).
    
    II. If the case be considered open, the provisions of the Code of Civil Procedure are in §§ 968-972. Section 968 provides that “In each of the following actions an issue of fact must be tried by a jury, unless the jury trial is waived or a reference directed.” Subdivision 2. “An action . . . for a nuisance.” In this case it would seem that no issues are to be framed. Section 969 provides that “ An issue of law and an issue of fact, in an action not specified in the last section, or wherein provision for a trial by jury is not expressly made by law, must be tried by the court, unless a reference or a jury trial is directed.” Section 970 provides that “ Where a party is entitled by the constitution or by express provision of law to a trial by jury of one or more issues of fact in an action not specified in § 968 of this act, he may apply, upon notice to the court, for an order directing all the questions arising upon those issues to be distinctly and plainly stated for trial accordingly.” Such is an action for divorce (§ 1757). In a case arising under section 970 it is provided that the findings of the jury upon each question so stated, is conclusive in the action, unless the verdict is set aside or a new trial granted.
    There are three classes of cases involved in the questions on this appeal. 1st. Actions “ for a nuisance ” (§ 968). (a) These are believed to be intended to supersede the old action for a nuisance, commenced by writ of nuisance, which is now abolished. This is not, strictly speaking, such an action. No issues were required, and the judgment which followed was statutory. It was not an equity case in any sense of the term. 2d. Section 970 : “ When the party is entitled by Constitution or by express provision of law to a trial by jury of one or more issues of fact in an action not specified in § 968.” This action is evidently not the one referred to - in § 970, for there is no provision of law entitling the plaintiff to a jury trial unless it is an action for a nuisance, in which case it would come under § 968. 3d. The third class is described in section 971, “ 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 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 distinctly and plainly stated for trial accordingly.”
    The case at bar would seem to be covered by § 971, and the court below was in error in saying that the case comes under the provisions of § 970.
    It is then the better practice to go to the special term in the first instance, and if the issues to be tried turn out to be such as require a. trial by jury, for the court then to determine the questions of fact or the issues to be sent for trial (Wheelock v. Lee, 74 N. Y., 495; Hammond v. Morgan, Ib. 179).
    
      Lewis Johnston, for respondent:
    I. Section 968, Code Civil Procedure provides that in an action for a nuisance a jury trial must be had, unless waived. Section 3339 provides that “ the distinction between actions at law and suits in equity, and the forms of those actions and suits, have been abolished.” This action is of the nature of a suit in equity, because of the relief by injunction prayed for, and hence the necessity of applying to the court under § 970, that issues be framed.
    II. The nature of the action is such that either party has the constitutional right to have the question of whether the grievance complained of is a private nuisance and the damage sustained thereby, decided by a jury (Hudson v. Caryll, 44 N. Y. 553 ; People, &c. v. Metropolitan Telephone Co., 31 Hun, 600). (a) In Davison v. Associates of the Jersey Co. (71 N. Y. 333), plaintiff had brought an action for specific performance; at the trial plaintiff demanded a jury, on the ground that defendant had conveyed, and his relief could only be damages for a breach of agreement; held that he had elected to bring an equitable action and chosen the forum, and that by not amending his complaint he had waived a jury trial. (6) The judge at special term has made the order appealed from recite that trial by jury is a matter of right, and the order must stand or fall upon that theory, unless the general term affirm it as a proper exercise of discretion, even if not a matter of right.
   The following opinion was rendered at special term

“Ingraham, J.

On the argument of the motion counsel for the plaintiff was understood to have stated that the action was one in which it was discretionary with the court whether or not issues should be settled and sent to a jury for trial.

“ On an examination of the complaint in the action, however, it appears that the plaintiff, after alleging certain facts tending to show that the defendant maintained a private nuisance, demanded judgment that the defendant may be decreed to abate said nuisance and to pay plaintiff damages which she has sustained by reason thereof.

“ In the opinion of the court of appeals reversing the judgment in favor of the defendant, Judge Andrews stated that upon the evidence and findings in this case there is no room for doubt that the engine house as used by the defendant constitutes, under the general rule of law, a private nuisance to the property of the plaintiff, and the action is treated throughout the opinion as for the abatement of a private nuisance.

“By section 968 of the Code, it is provided that in an action for a nuisance an issue of fact must be tried by a jury, unless a jury trial is waived or a reference is directed.

“ In Hudson v. Caryl (44 N. Y. 553), it was held by the commission of appeals that under the provisions of the constitution of the state, where the facts stated would sustain a common law action for the removal of a nuisance, that action must, on the demand of either party, be tried by a jury.

“ The fact that the complaint also demands equitable relief so that neither party is entitled, as a matter of right, to a trial of all the issues by a jury, would bring the case within the provisions of section 970 of the Code, which provides that where a party is entitled by the constitution or by express provision of law to a trial by jury of one or more issues of fact in an action not specified in section 968 of this act, he may apply upon notice to the court for an order directing all the questions arising upon those issues to be distinctly and plainly stated for trial accordingly.

“In People v. Metropolitan Telephone Co. (31 Hun, 600), the general term of the supreme court held, ‘ by the settled practice preceding the enactment of the present Code, that portion of the action which presents the question whether these poles were a nuisance was the proper subject of trial by jury, and that practice has been embodied in subdivision 2, of section 968, of the Code of Civil Procedure.’

“ I think, therefore, that the plaintiff is entitled to a trial by jury of the issues, as to whether or not the engine house as maintained by the defendant was a nuisance, and as to the amount of damage caused by the said nuisance if one is found to exist.

“ If the findings of the jury upon the issues submitted to them do not cover the whole case and other issues remain to be tried, or other facts requisite for equitable relief remain to be proven, then the case must be regularly brought to a hearing before the court, as provided in the case of Hammond v. Morgan (101 N. Y. 187).

“ The motion must, therefore, be granted.

“ The order can be settled on notice when the defendant can be heard as to the issues to be submitted to the jury.”

Per Curiam.

This action is brought for the abatement of a nuisance, the recovery of damages, and for a perpetual injunction. The plaintiff, therefore, seeks both legal and equitable relief. In such a case final judgment must, after a trial of the issues, be given by the court at special term.

The question presented by the appeal is whether, in such a case, the plaintiff can claim a trial by jury of the issue of nuisance or no nuisance, as matter of right, or whether such a trial of the said issue rests in the discretion of the court.

The correct determination of this question is of great importance to the defendant, because, if the plaintiff is absolutely entitled to a jury trial, the finding of the jury upon the issue submitted, is, under § 970 of the Code of Civil Procedure, conclusive in the action, unless the verdict is set aside, or a new trial is granted, while, on the other hand, if a trial by jury rests in the discretion of the court, the verdict is merely for the information of the conscience of the court.

Under the decision by the commission of appeals of Hudson v. Caryl (44 N. Y. 553), we feel constrained to hold that the plaintiff is entitled, as matter of right, to a trial of the said issue by a jury, and that the learned judge below who made the order, correctly stated the reasons at length which required the granting of the order as made.

The order appealed from should be affirmed with costs.  