
    The Fire Department of the City of New York v. Joseph Harrison.
    
    An action to recover damages or a statute penalty, for creating or continuing a nuisance, must be tried by a jury, unless a jury trial is waived.
    Actions of such a nature were triable by a jury prior to the constitution of 1846, and the right was preserved by that instrument. A jury trial cannot now be dispensed with in such cases, unless the parties consent thereto in the manner prescribed bylaw.
    A suit was brought to recover statute penalties for the erection of certain buildings in the city of New York in violation of the act of 1849, for the more effectual prevention of fires. On the case being called, the defendant demanded a jury trial, which the judge presiding refused, and the action was thereupon tried by the court without a jury; Held, erroneous.
    In such a case a jury could not be dispensed with, without the consent of the defendant.
    Appeal, by the defendant, from a judgment at special term, upon a trial by the court without a jury.
    The action was brought against the defendant, as owner of what are alleged in the complaint to be “four dwelling houses or buildings,” on the southerly side of Jane street,' between Greenwich and Washington streets, in this city, for the recovery of a penalty for violation of the 2d, 3d, and 5th sections of the act entitled “ An act for the more effectual prevention of fires in the city of New York, and to amend the acts heretofore passed for that purpose,” passed March 7th, 1849, the violation aEeged being that each of said four dwelling houses or buildings were erected and continued without an outside or party wall of stone or brick on one side of each of said dwelling houses or buildings respectively. The defendant, in his answer, alleged that he was the owner of two dwelling houses, situated on the southerly side of Jane street, each of a width not exceeding thirty feet, and each having outside or party walls on each side thereof, of stone or brick, and not less than twelve inches in thickness; and denied that he was the owner of four or any buildings situate as aforesaid, which have been erected or continue in violation o said sections of the act. The case was tried before Judge Ingba ham, at a special term, without a jury, (the defendant objecting, and claiming a trial by jury).
    The finding of the court was as follows:
    I find as to the facts, that the defendant is the owner of the buildings. That they were erected under his order and on his account, after the year 1850. That the buildings so erected are four separate and distinct houses. That two of the partition walls are erected of studs, and not of brick or stone, and are a violation of the fire laws passed relative to the city of New York. That on the 9th March, 1852, the fire wardens gave the necessary notice to remove the same, and that such notice has not been complied with; but that the partitions still remain; and I find as matter of law upon these facts, that the defendant is liable to the penalty of $500, for erecting each of such buildings, in violation of law, and the further sum of $50 for each twenty-four hours, from 9th March, 1852, for not removing the same after notice so to do was served upon him. As the plaintiffs do not claim the whole penalty, judgment is given for the plaintiffs for $5,000. The plaintiffs also are entitled to a decree, that the nuisance be removed. To which decision and finding of the judge, the defendant duly excepted.
    Upon the argument, the case was fully discussed upon the merits, and also upon exceptions taken to the rulings of the judge in excluding evidence offered by the defendant at the trial, but as the decision at general term rested upon the first point presented by the counsel for the appellant, the others became' immaterial, and are not, therefore, presented.
    
      Malcolm Campbell, for the appellant.
    The court erred in refusing to grant to the defendant a trial by jury.
    
      Augustus F. Smith, for the respondents.
    I. The constitution preserves trial by jury in all cases in which - it has been heretofore used, (§ 2, art. 1). The Court of Chancery always had jurisdiction, in cases of nuisance, to restrain or to remove. 2 Story Eq. Jurisp. § 925, &c. When a court of chancery has obtained jurisdiction for one purpose, it will retain it generally. Rathborn v. Warren, 10 J. R. 587; Hawley v. Cramer, 4 Cow. 718, 728.
    II. One ground of relief in equity always was to prevent multiplicity of suits. 1 Story Eq. Jurisp. 64, 65. In College v. Bloom the court say they will, to prevent multiplicity of suits in an action for an injunction to prevent waste, give the plaintiff damages for waste already committed. 3 Atk: 262, 263. Clearly, then, before the Code, these houses, being a nuisance under § 26 of the Eire Law, the Court of Chancery would have had jurisdiction to restrain their erection, and to direct their removal; and, having jurisdiction for that purpose, the court would have retained it for all purposes.
    III. The two causes of action are properly joined. (Code, § 167, subd. 1. The objection is not that the court had not jurisdiction to try that part of the action which claimed a penalty, but was general, that the case (the whole case) should be tried by a jury. If a party take a general objection to a charge, and one proposition is erroneous, and the other right, the exception is of no avail. Hart v. The Rensselaer RR. Co., 4 Seld. 37 43; Howland v. Willetts, 5 Seld. 171
    
      
      Judge Hilton, having been counsel in this case, took no part in its decision.
    
   Brady, J.

This action was brought to recover penalties in curred by the erection of four buildings in violation of the fire laws, particularly designated in the complaint, and for the judgment of the court, in accordance with the provisions of the statute, that the several houses be taken down and removed. When the cause was called at the special term, the plaintiffs’ counsel moved that it be tried by the court without a jury. The defendant’s counsel claimed a trial by jury. The judge presiding decided that the action should be tried by the court without a jury, and the defendant excepted. This presents the first question on the appeal.

The Code (§ 253) provides that an issue of fact in an action for the recovery of money only, or of specific real or personal property, or for a divorce from, the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived, as provided in section 266, or a reference be ordered, as provided by sections 270, 271. Section 256 provides that every other issue is triable by the court, which, however, may order the whole issue or any specific question of fact involved therein to be tried by a jury, and rule 69 of the Supreme Court, in force when this action was tried, and which stated the practice under this section, declared that in cases where the trial of issues of fact was not provided for in section 253 of the Code, if either party should desire a trial by jury, such party should, within ten days after issue joined, give notice of a special motion to settle the issues; and that the court or judge might settle the issues, or might refer the settlement of them to a referee. This is not one of the class of cases to be tried by a jury, specifically mentioned in section 256. It is not for the recovery of money only. It is to recover penalties, and for the removal of buildings erected in violation of law, and no application was made for a jury trial, in conformity with rule 69, supra. Unless, therefore, the constitutional right of trial by jury has been violated, the defendant was not entitled to a trial in that mode. The constitution (§ 2, art. 1, adopted 1846) provides that the trial by jury in all cases in which it has been heretofore used, shall'remain inviolate forever. But that a jury trial may be waived, by the parties in all civil cases in the manner to be prescribed by law. The Code (§ 266) provides that the trial by jury may be waived by the several parties to an issue of fact in all actions on contract, and with the assent of the court in other actions in the manner following: 1. By failing to appear at the trial; 2. By consent in person or by attorney, to be filed with the clerk; and 3. By oral consent in open court, and entered in the minutes.

The defendant having appeared at the trial, and not having consented, the trial by jury was not waived in the manner prescribed by law, and it therefore remains to be considered, whether this action is one in which a trial by jury was in use prior to the constitution of 1846. By the 26th section of the “ Act for the more effectual prevention of fires in the city of New York,” &c., passed March 7,1849, (Laws óf 1849, p. 118), every, dwellinghouse, store, storehouse, ashhole, ashhouse, shed, or other building of any description whatever, mentioned before in that act, which shall be erected, built, roofed, repaired, altered, enlarged, built upon, or removed, contrary to any of the provisions of the act contained in the preceding sections, is declared to be'a common nuisance; and the justices of the Supreme Court, and the justices of the Court of Oyer and Terminer, and general jail delivery, and the justices of the Court of General Sessions of the Peace, within the city of New York, have cognizance of the offence, and are empowered, upon conviction,-to adjudge such fines and penalties as they, in their discretion, shall think fit and proper, and also, in their discretion, to cause such nuisances to be abated and removed. By the 30th section of the same act, the Supreme Court of the state of New York, and the Court of Common Pleas for the city and county of New York, in addition to the power of enforcing the penalties provided by law, and by the act, for a violation of the provisions of the statute, are endowed with power to restrain, by injunction, the further erection of a building, in an action to be brought by the fire department, and to adjudge and decree that a building erected in violation of the statute shall be taken down and removed, the statute imposing only, as a preliminary to the exercise of this jurisdiction, that ten days’ notice to remove the violation shall be given. The nuisance, it will thus' be perceived, and the penalty and forfeiture incurred, are declared by statute. The erections which the statute was designed to prevent, would not be nuisances at common law, per se, and the consequences of a violation of the provisions of the law on the subject, are those only which are prescribed. None of the acts of the legislature, prior to the act of 1849, in terms conferred power upon the courts in an action at law, not only to enforce the penalty, but to adjudge that the violation be taken down and removed or abated. Some of them contained a provision, declaring the violations a common nuisance, and authorized the courts, on indictment and conviction, to abate and remove them. Act April 9, 1813, §§ 60, 62, 63; Act April 11, 1815, §§ 2, 4, 5 ; Act April 12, 1822, §§ 3, 4; Act April 9, 1823, § 2 ; Act March 21, 1827, § 2 ; Act May 1, 1829, § 2 ; Act April 20, 1830, §§ 17, 22; Act April 30, 1834, § 8.

This action,, therefore, if determined by the judgment asked, was not one in use when the constitution of 1846 was adopted, nor was the provision violated contained in any statute in existence at that time. It is true that the common law remedy' by writ of nuisance was retained, subject to the provisions of the statute. 2 Rev. Stat. 333, second edition. In that proceeding the jury, if the court so ordered, could view the premises, and if the plaintiff prevailed, the judgment followed that the nuisance be removed, and that he recover his damages. So, in all actions founded upon damages resulting from a nuisance, the trial by jury prevailed. There was a distinction, however, between a common and a private nuisance. On account of the former no action would lie by an individual unless he suffered some extraordinary damage beyond the rest of the people, or some peculiar or special injury, in which case he should have a private satisfaction by action. 3 Bl. Com 220; Lansing v. Smith, 4 Wend. 9, per Walworth, Ch.; Willard’s Eq. 339; Penniman v. N.Y. Balance Co., 13 How. Pr. R. 40; Hecker v. Same, id. 549.

The statute of 1849 is a remedial statute, in the nature of a police regulation, designed for the protection of life and property, and the penalties imposed for a violation of it are given to the fire department exclusively. The consequences of such violation may be highly penal. The accused, as we have seen, may be punished by fine, and his property destroyed, when the proceeding is by indictment; and when by action, the penalty may he recovered and the property destroyed. I do not think it necessary, in disposing of the exception taken, to consider how far it is affected by the constitutional provision, that no person shall be deprived of his property without due process of law, because I think it may be disposed of on the first constitutional right or privilege suggested. It is said by A. S. Johnson, J., in Wynehamer v. The People, (3 Kernan, 426), in reference to the first part of art. 1, § 2 of the constitution, viz.: “The trial by jury in all cases in which it has heretofore been used shall remain inviolate forever,” that the expression “in all cases in which it has heretofore been used” is generic. That it does not limit the right to the mere instances in which it had been used, but extends it to such new and like cases as might afterward arise, and illustrates this view by stating that felonies were tried by a jury, and if a new felony were created, it must be tried in that way. The application of that principle disposes of the question in hand. A common nuisance is a misdemeanor, and indictable at common law, (Wharton’s Or. Law, 4), but the indictment was not triable in the Special Sessions, (2 Eev. Stat. 711, § 1; id. 714, § 22); and when an action was brought by an individual to recover damages resulting from a common nuisance, the action proceeded according to the course of the commen law, and there was a trial by jury. The violation complained of in this action is declared a common nuisance, and the statute declaring it has not prescribed the mode of trial. The rule, applicable to an action by an individual for damages occasioned by a common nuisance, would apply to a trial to recover a penalty imposed by the statute, at which the defendant would be entitled to a jury in a justice’s court, if demanded. Act of 1813, vol. 2, Eevised Laws, 370, § 95 ; 2 Eevised Statutes, 242, § 93. And at all events, in a court of record, proceeding according to the course of the common law. 2 Bev. Stat. 409, § 4. This action, then, regarded as one at law to recover a penalty or to remove a nuisance, is an addition to a class of offences and actions well known and defined, and in -which the mode of trial was by jury, and was well known and in use prior to the constitution of 1846. It is no answer to the conclusion thus expressed that the Court of Chancery had jurisdiction to restrain arid abate a nuisance, and that having acquired jurisdiction for any purpose, that court retained it generally. The power of the Court of Chancery to interfere in cases of nuisance cannot be doubted, although it is stated as an elementary rule, that in many of the cases indictable as common nuisances, courts of equity have no cognizance, (Willard’s Equity, 389; Eden on Injunctions, 160); and it seems that the relief in equity was confined to the restraint or abatement of the nuisance. A prayer for damages would be stricken out. Brady v. Weeks, 3 Barb. S. C. Rep. 157. The courts did not always interfere in cases of common nuisance. The Court of King’s Bench, in Rex v. Justices of Dorset, (15 East. 594), refused to interfere, and left the party to his remedy by indictment. These authorities are referred to not for the purpose of questioning the power of the Court of Chancery, where its interposition was asked in cases of nuisance, but to show that there was a distinction between common and private nuisances recognized in that court. But conceding this power in cases of nuisance, public and private, the history of that jurisdiction, and all the cases wherein it was employed, will show that it was exercised by injunction, and on bills filed expressly for the purpose of obtaining that process, (2 Story’s Eq., §§ 923, 924, 925 ; Eden on Injunctions, 157; Willard’s Eq. Jur. 388); and there are no instances to be found in which the Court of Chancery had assumed jurisdiction to abate a nuisance, and decree a penalty or damages for its creation. As we have seen, (Brady v. Weeks, supra), the Supreme Court of this state, acting as a court of equity, struck out the prayer for damages as multifarious.

I think it may also be said of this and kindred actions, that they are not in their nature such as would induce the interference of a court of equity. The plaintiffs have not suffered any injury, special or peculiar, and the building itself would not, as such, occasion injury to the plaintiffs. Penniman v. New York Balance Company; Hecker v. Same, supra. The nuisance is neither prejudicial to health nor offensive to the senses, and does not present any of the features of a nuisance known to equity or the common law. But without further pursuing this view, there are considerations which claim our attention, and which arise from the pleadings and the statute in reference to which they were framed. The plaintiffs claim a penalty and the removal of the nuisance. They do not ask for an injunction, and none in fact was necessary. The buildings had been erected when the action was commenced. The mischief was done, and there was no reason or ground for an injunction. An injunction would have accomplished nothing, and would not have been granted on the complaint. There was nothing to restrain. The action is in form, therefore, an action at law in which, by the statute, the plaintiffs are entitled, on proving the complaint, to double relief, viz.: judgment for the penalty claimed, and that the nuisance be removed. The complaint does not seek the aid of equity jurisdiction, and there is nothing in the case which calls for its interposition. The judgment demanded and rendered would not have been granted by a court of equity prior to the constitution of 1846.

There is nothing in the complaint and nothing in the case which, in either .branch of it, necessarily forms the ground of equity jurisdiction, and when that is the case, the right of trial by jury is absolute and cannot be denied, (Greason v. Keteltas, 17 N. Y. Rep. 491), while the whole scope of the action is certainly not of equity cognizance. Having thus considered the complaint and the case made, if we turn to the statute of 1849, (supra), we find that the power to restrain in these cases thereby given, is not conferred upon the Supreme Court and this court as courts of equity, but in addition to the power already possessed to enforce the penalty; which power to enforce the penalty was to be exercised according to the course of the common law, and by which course a jury trial was a right secured. The language of the statute shows that the intention of the legislature was to confer upon the courts named a special jurisdiction-in actions to be brought by the plaintiffs for the recovery of the penalties imposed for violations of its provisions. If the penalty was in fact incurred, then the statute was violated, and a common nuisance proved to have been created. The court might then direct the building to be removed. The inquiry as to the penalty would necessarily determine the question of nuisance, and thus present to the court all the elements requisite for the judgment to be given. This comprehensive provision as to the judgment to be granted did not change the character of thu action, but enlarged the relief to be granted. My conclusions are therefore as follows:

1. That although prior to the constitution of 1846, a court ol equity bad jurisdiction in cases of nuisance, and although thin court possesses general law and equity jurisdiction, the complaint herein does not, by any averment made or relief asked, seek the aid of equity jurisdiction.
2. That in these actions this court acts as a court of law exclusively.
3. That if it does not so act, then this action is in form an action at law; and
4. That in either point of view the defendant was entitled to a trial by jury on all the issues presented.

The judgment should therefore be reversed

Daly, First Judge.

This is not a case in which a trial by jury could be waived, unless by the consent of the parties; nor does it come within the class of cases specified in the Code as triable by a jury; but it is nevertheless to be tried by a jury unless it is a case where the remedy sought is of an equitable nature, analogous to those of which the Court of Chancery would formerly take cognizance, and could alone afford the entire relief asked. It is not, in my judgment-, a case of that nature or kind. A court of chancery would not interfere where there was an ample remedy at law. It would interpose by injunction to restrain parties from creating or continuing a nuisance, because it could alone afford that remedy. If an erection was begun, which ivas or would become a nuisance, it would restrain the party from the further prosecution of the work, but it had no jurisdiction to compel him to undo what was done, unless the fact of the nuisance was established by an action at law. Bradford v. The Manchester, Sheffield and Lincolnshire Railway Co., 8 Eng. Law and Eq. R. 143. In the case cited, the defendants commenced the - erection of a wall by which the water was prevented from flowing up to the plaintiff’s mill, which diverting or stopping off of' water running to another’s mill or meadow, is, by the common law, a nuisance. F. N. B. 184; 2 Eq. Abr. 522, pl. 3. Sir J. Pabkeb, the vice chancellor, granted an injunction to restrain the defendants from the further prosecution of the work, but said that he could not make them undo anything actually done.. The instances of the interposition of the court upon the subject of nuisance, says Lord Eldon, in The Attorney General v. Cleaver, (18 Ves. 217), are very confined and rare; and he remarks-farther, upon the authority of Lord Hale, that the question off nuisance, whether public or private, unless it be the obstruction of a highway or of a harbor, is a question of fact, which must be tried by a jury, and that though the court might entertain a suit to abate a nuisance, it would be bound to try the fact by the: intervention of a jury. But in Willer v. Smeaton, (1 Cox, 102), the court went farther than this. It was a suit in equity to com pel the defendant to pull down and remove certain works which obstructed the plaintiff’s mill, and to restrain him from erecting new ones, and it was held that the bill would not lie, until the right was first established by an action at law.

This action is not to prevent or restrain the defendant from doing anything, but to compel him to take down and remove a building which he has erected, upon the ground that it is a nuisance, and to recover a statute penalty. A penalty is recoverable by an action at law, and it is very plain, upon the authority of Willer v. Smeaton, that a hill in equity would not lie to compel the taking down and removal of a building as a nuisance, unless the fact of its being one was first established in an action at law. When the fact was ascertained by a recovery in an action at law, the court would lend its aid to compel its removal, as the plaintiff had no other remedy at law but to bring successive actions upon the case for damages, the assise of nuisance and the writ quod permittat p-osternere, by which a nuisance might be removed, having been abolished by statute. But in this state there was a full and ample remedy at law, without resorting to a court of equity; as in the action of nuisance, under the Revised Statutes, the plaintiff had judgment, not only for his damages, but that the nuisance be removed; a provision which the Code has retained, (§ 454). He had no occasion to go into a court of equity, except in cases where it could alone afford relief by an injunction to prevent or restrain.

If the buildings owned by the defendant are in violation of the act of 1849, they are, by the statute, a common nuisance, and the defendant is subject to certain penalties for causing them to be erected. By §§ 25, 30, and 31, of the act, the penalty may be enforced in this court, or in the supreme court, by an action to be brought by the fire department, in which action the court may, in addition to giving judgment for the penalty, also adjudge and decree that the building be taken down and removed, which decree it is made the duty of the sheriff to execute. There is nothing in this action of exclusive equitable cognizance. It is to compel the removal of a common nuisance, and to recover a penalty incurred by creating it. The remedy sought by the removal of a nuisance was one that was obtainable in this state, when the Court of Chancery was in existence, by an action at law, in which full and adequate relief was afforded without resorting to a court of equity at all, and one that the English Court of Chancery would not grant, unless the existence • of the nuisance was established by the judgment of a court of law; or, according to Lord Eldon, by the verdict of a jury. I ■therefore concur with Judge Brady, that it is an action in which a trial by jury could not be dispensed with, unless with the defendant’s consent. The case cited by the plaintiff, (Jesus College v. Bloom, 3 Atk. 262), instead of being an authority for him, is directly against him. It is very true, that if a court of equity has acquired jurisdiction, that it will, to avoid multiplicity of suits, embrace other matters connected with or growing out of the subject, though they may be cognizable in courts of law, unless they embrace objects so diverse and different, as to be liable to the objection of multifariousness. Lord Hardwicks consequently said, in that case, that where an injunction would be allowed to stay waste, and waste had been already committed, the court would decree an account and satisfaction for what was past, but he dismissed the bill because the plaintiff did not ask .an injunction to restrain, but his bill was for an account and a satisfaction. There was, in that case, as it is in this, no element of equity jurisdiction, for the plaintiff could obtain all that he sought by an action at law.

Judgment reversed.  