
    ZIEGLER v. CHAPIN.
    
      N. Y. Supreme Court, Kings County ;
    
    
      February, 1890.
    
      Trial; awarding issues^ In a taxpayer’s action brought under the statute to enjoin a proposed purchase of property by city officials on the ground of waste, issues will not be framed for submission, to a jury upon incidental questions of alleged fraud.
    William Ziegler, as a taxpayer, brought this action-, against Alfred C. Chapin, Theodore F. Jackson and Thomas B. Rutan, as Mayor, Comptroller and Auditor, respectively, of the city of Brooklyn, to enjoin them from "carrying out a contract for the purchase of the property and franchises of the Long Island Water Supply Company, and joined the company also as a defendant.
    The plaintiff now moved to submit certain issuefe alleged to arise on the pleadings to a jury.
    
      
      William J. Gaynor, for the plaintiff and the motion.
    
      Albert F. Jenks, for the defendants Chapin, Jackson and Rutan.
    I. Plaintiff’s complaint does not demand judgment for a sum of money only, and his action is not for ejectment, for dower, for waste, for a nuisance, or to recover a chattel. Therefore, he is not entitled to a jury trial as a matter of right (Code Civ. Pro. § 968). The term “ waste ” as used in § 968 of the Code, -refers to the action described and specified in § 1561 of the Code. The character of the action is determined by the allegations. As they entitle the defendant to equitable relief, if to anything, and as he prays for equitable relief, to which the allegations entitle him, this is an equity action, even if he were entitled to damages incidentally, and even if he prayed for damages. (Walker v. Manhattan Railroad, 53 N. Y. Super. Ct. 137; Carroll v. Deimel, 95 N. Y. 252.) The motion is addressed purely to the discretion of the court (§ 971 of the Code). Waite's note on § 970 of the Code reads: “ This and the two following sections have been substituted for that .portion of § 284 not covered by § 969. They are designed to give practical effect to the rules laid down in Birdsall v. Patterson (51 N. Y.) Issues in such an action as this are directed by the court only to aid in the "trial of a case ” (Church v. Freeman, 16 How. Pr. 294; Hammond v. Morgan, 101 N. Y. 186; Rumsey’s Practice, yol. 2, 198). Previous to the act of 1838 the court of chancery did not grant issues. After the act of 1838 it became the imperative duty of the court to grant them, where an issue or issues could be framed, but the amendatory act of 1839 made it discretionary with the court to grant them, if, in the opinion of the chancellor, the proceeding would be expedited or the costs diminished, .or. a jury trial would be most conducive to the ends of justice (New Orleans v. Dudley, 8 Paige, 456), This motion is not in the usual course. While the practice warrants it, it is rarely recognized or exercised. The special term will almost uniformly try the whole case without calling in a jury to its aid. The burden is upon the plaintiff then to show the court why this departure from the usual practice should be made in this case, and the defendants are not even required, in the first instance, to show that the cause can as well be tried by the court (Fanshaw v. L. & P. Dairy Co., 38 Chancery D. 72). There is nothing whatever in the plaintiff’s moving papers contained, save the notice of the motion and the submission of fifty proposed issues. That the case incidentally presents questions of facts •does not warrant the plaintiff’s motion (citing, McKeon v. See, 51 N. Y. 304; Rustin v. Tobin, L. R., 10 Ch'y Div. 558; Back v. Hay, 5 Id. 235; Pilly v. Bellows, 5 Id. 241 ; Case of Sykes v. Firth).
    On appeal in Rustin v. Tobin, Jessell said : “ I am of the opinion that, as was said in Swindell v. Birmingham (3 Ch'y Div. 137), the court of appeals ought not, as a general rule, to interfere with the discretion of a judge, as to the way in which a case before him shall be tried. There may be a case so strong as to induce him to interfere, but it must be a very strong One. It is said that the judge ought not to have decided such a point on reading the pleadings, but, in my opinion, that is just what he ought to have done. Then it is urged that the vice-chancellor exercised no discretion, but it clearly appears to me he did. He went on the ground that this was a kind of case which had always been tried in chancery, never in common law, but not a case turning on a single misstatement, but on a series of misrepresentations, so there was no single question of fact which could be submitted to a jury. It is no part of my duty to say what I should have done if this case had come before me in the first instance, but I do unhesitatingly say I should have done what the vice-chancellor has done.’’ James and Bramwell, L. JJ., concur. In Dale v. Rosevelt, 6 Johns. Ch'y, 255, the chancellor said: “ As to the suggestion of a framed issue, it is sufficient to observe that it is the practice and the undoubted jurisdiction of the court to decide on the facts as well as the law, and the awarding of an issue rests in the sound discretion. It would be an abuse of that discretion, and the creation of a great and unnecessary expense, to _ award an issue when the truth of the fact could be sufficiently and satisfactorily ascertained by the court itself. This court, in the time of Chancellor Livingston, received a memorable admonition in the case of Le Gruen v. Gouveneur and Kemble (1 Johns. Cas., 436), of its duty to decide upon the facts when they appear sufficiently clear and certain without the burden of a trial at law.” In Smith v. Carll (5 Johns. Ch'y, 118), the chancellor says: “The court is never bound (except it be on the issue devistavit vel non or on-bills for divorce, for adultery) to send a matter of fact to be tried by a jury if it can, to its own satisfaction,, decide itself upon the evidence ” (Lord Elden in 3 Vesey and Bea. 42; 4 Dow., 318, 320, 330). So in King v. Barnes (109 N. Y. 267), at page 290, the court of appeals, per Ruger, C. J., say : “We know of no rule of law requiring that charges of fraud incidentally arising upon an accounting in reference to partnership transactions shall be tried by a jury. It has been the invariable practice of courts of equity to try all questions arising before a referee in the stating of accounts between partners or joint owners, and necessarily involved in such accounting since their origin, and we are referred to no authority questioning their power to do so.”
    II. Though it is not incumbent on the defendants, I submit to the court that there are cogent reasons why it should not depart from the usual course. As I have already stated, the usual course is for the court to try the whole issue in actions based on allegations warranting equitable relief and preceding a prayer demanding it. Within two weeks Mr. Justice DykMAN denied a motion to frame issues for a jury in the case of Brooks v. Wilson. This was an action to set aside a mortgage on the ground of fraud, and Mr. Justice Dykman, in denying the motion, stated that such an issue was peculiarly triable by the court without a jury, and should never be sent to a jury for trial (Knickerbocker Life Ins. Co. v. Nelson, 8 Hun, 21; Paul v. Parshall, 14 Abb. Pr. N. S. 138).
    III. To the objection that the number and complexity of the questions proposed was a reason for ■ denying the application, counsel cited (Rutty v. Person, 12 Abb. N. C. 352 ; Blunt v, Hibbard, 3 N. Y. Supp. 121 ; 2 Rumsey's Pr. 198).
    
      Thomas E. Pearsall, for the Long Island Water Supply Company.
    I. All issues of fact as well as issues of law in actions, provision for a trial of which by jury is not expressly made by law “ must be tried by the court ” {Code Civ. Pro. § 969). Plaintiff is not entitled to a jury trial as matter of right under § 968, which provides that an issue of fact must be tried bj7 a jury in actions of ejectment; for dower; for waste; for a nuisance, etc. This action is brought to restrain the officials of the city of Brooklyn from carrying out a contract to purchase property for the public, upon the ground that the proposed purchase would be a waste of the public funds. The waste sought to be included in this action is not the kind of waste referred to by § 968. There is but one action for waste provided for by the code, and that is included in Title I of Chapter 14, entitled “ Actions relating to real property.” It Is clear from a reading of the sections (1651 to 1659) relating to an action for waste, that che action is one strictly for damages, and relates solely to a wrong or injury to specific real estate. “ Waste is any unlawful act or omission of duty which results in permanent injury to the inheritance. It may consist in either diminishing its value, in increasing its burdens, or destroying and changing the evidences of title to the inheritance. Waste may therefore be voluntary as by an act of commission, and involuntary by an act of omission. Thus : To alter a building so as to change the manner of using it is voluntary waste; to let it fall into decay, is permissive or involuntary waste ” (Tidemon on Real Property, § 74 and note 3).
    The actions for waste within the meaning of the code, relate to injuries to specific real property (Robinson v. Kime, 70 N. Y. 147; Van Deusen v. Young, 29 Id. 9; McGregor v. Brown, 10 Id. 114). And see Purton v. Watson (19 N. Y. State Rep. 6), and cases there ■cited. While the taxpayer’s action to restrain alleged •“ illegal ” or “ wasteful ” official acts brought under the statutes are invariably actions in equity wherein an injunction is the relief demanded (Metzger v. Attica R. R. Co., 79 N. Y. 171; Hills v. Peekskill Bank, 34 Hun, 143; Tappan v. Crissey, 64 How. Pr. 496; Warren v. Baldwin, 105 N. Y. 134). Before the Act of 1872 (being the first of the series of taxpayers’ acts), a taxpayer had no remedy against the perversion of municipal property (Rosevelt v. Draper, 23 N. Y. 318). An action for waste is a common law action, and a trial by jury in such an action was a matter of right under the old Code (§ 253 of Code of Procedure.) The taxpayers’ acts afford remedies of a preventive nature. The mode of trial can only be determined from the pleadings. Jury trials are pertinent only where damages are claimed (McKeon v. See, 51 N. Y. 300); or where the action is brought affecting damages arising out of, or a claim to, specific real property {Code Civ. Pro. § 968). In an action brought to obtain equitable relief only, a jury trial is never a matter of right (Knickerbocker Life Ins. Co. v. Nelson, 8 Hun, 21; Farwell v. 
      Importers’ Bank, 90 N. Y. 483 ; Ward v. Plato, 23 Hun, 402). And hence the waste, prevention of which is provided for in the taxpayers’ acts, is clearly not the “ action for waste,” the trial of which by a jury is a matter of right under § 968 of the Code (Cogswell v. N. Y. & New Haven R. R. Co., 105 N. Y 321), where the principle is applied to the case of “nuisance.”
    II. The practice adopted by the general term of the Second Department is opposed to a trial by jury in an equity case and to a framing of issues for submission to a jury (Knickerbocker Life Ins. Co. v. Nelson, 8 Hun, 21).
    III. The mere fact that the plaintiff propounds fifty (50) questions, each one of which require a “ yes ” or •“ no ” answer by the jury, is sufficient in and of itself to defeat the motion. See Bay lies Trial Practice, 63. I. Difficult, numerous and complicated special issues should not be sent to a jury in a case triable by the court (Rutty v. Person, 12 Abb. N. C. 352 ; Blunt v. Hibbard, 3 N. Y. Supp. 121). Even where parties have consented to the trial of issues by a jury, the court is not precluded from taking them away from the jury, “ When it is apparent that the submission of such issues would only embarrass the case, would not subserve any useful purpose, but only tend to obstruct the course -of justice. (St. John v. Coates, 24 Abb. N. C. 158.) II. Because some of the proposed interrogatories imply fraud is not a ground for granting this motion. Fraud is as much a subject of equity jurisdiction as it is within the cognizance of a law court. It is a general rule that courts of equity exercise a general jurisdiction in cases of fraud (Story's Equity, 11 ed. § 184). And where the action is in equity,—where the plaintiff seeks equitable relief,—the mere fact that charges of fraud are made the subject of examination is not a ground for a trial by jury of those charges (King v. Barnes, 109 N. Y. 267, 290). In an equity action to set aside alleged fraudulent conveyances made by a judgment debtor the defendant is not entitled to a jury trial (Wright v. Nostrand, 94 N. Y. 31 ; s. p. Paul v. Parshall, 14 Abb. Pr. N. S. 138).
   Justice Cullen in deciding the motion spoke as follows :

“ I am entirely clear as to what disposition should be made of this case.
“ Of course it is a mere question of discretion. It is-the same as in the old Chancery - Practice. The court framed issues that should be tried by a jury. That was done only in a certain class of cases, and it was. done for a purpose—done because the court really believed that “the verdict of the jury would be better than its own.
“You take an action involving forgery, a question of the legitimacy or illegitimacy of a child, or the legality of a marriage contract, the verdict of a jury is. thought to be better than that of any court. The court might even desire to gain what is good, by having its. own judgment confirmed by the judgment of the jury. But I think that has no application to a case like this.
“The ultimate responsibility in determining this, case rests upon the court. The verdict of the jury would not be conclusive. In fact, you could not enter the verdict until you moved to confirm it, and the court could give judgment the other way.
“ Here are a vast number of issues. Some of them present questions of fact sharply defined; others do-not. There are questions of law that will constantly arise in this case, and will make the court determine the relevancy and materiality of some of these issues. The trial judge before the jury would be powerless.
“ The court does not share in the feeling for a. moment that newspaper articles will affect a jury. I think the jury would be fully as independent and free from prejudice in passing upon this case, as the court.
“ The determination of this case must rest upon the judge. He must decide it. It seems to me that it would be a mere evasion of justice to send this case to a jury. I think this case should be tried before a court. The motion is therefore denied.”  