
    WATSON v. MANHATTAN RY. CO.
    
      N. Y. Superior Court; General Term
      
    
    February, 1886.
    Injunction.—Pleading ; Complaint ; Cause of action, whether LEGAL 03 EQUITABLE.-TSIAL ; By JURY OR AT SPECIAL term; Waiver of right to trial by court; Verdict to support judgment.
    A complaint alleging the construction by a railroad company of an elevated railroad and station, in the street, in front of plaintiffs’ land and buildings, and the impairment of light and air thereby, and the existence of incessant noise, noxious smells, &c., resulting therefrom: the consequent loss in rental value of the buildings ; that, plaintiffs have been already damaged to the amount of $80,000, and that, if the structures and their use be continued, plaintiffs’ property will be permanently depreciated in value to the amount of over $200,000, and plaintiffs suffer a permanent injury to that amount; that damages alone will not be an adequate remedy for the injury resulting from a continuance of the railroad and station; and demanding judgment for $80,000 damages already sustained, and that defendants be enjoined from maintaining or operating the railroad, and that they abate the use of and remove the railroad and the station from the street in front of plaintiffs’ premises, or that the defendants be permitted to continue the existence of the railroad and station only on condition that the plaintiffs be first paid the sum of $200,000, and that until payment thereof the operation of the railroad be enjoined, but containing no allegation that the erection of the railroad structures or the operation of the railroad was without the authority of the legislature—states a cause of action in equity to restrain the defendants from continuing to use and occupy with their railroad the portion of the street adjoining plaintiffs’ property, and is not an action to abate a nuisance. '
    The trial of such an action before a jury as an action at law, against ■ the defendants’motion-that the cause be stricken from the calendar of the trial term, and ordered to be tried at a special term as an equity case, is error, requiring a reversal of the judgment.
    The defendants’ right to a trial before the court without a jmyis not waived by serving cross-notice of trial at a jury term, the action being for damages already sustained and an injunction, so that plaintiffs could waive the claim for equitable relief and be entitled to a trial by jury for the damages claimed, where the defendants move ns soon as it is developed by the opening of the case that, the claim to equitable relief will be insisted on.
    Keither is it waived by the’defendants’appearing on several days when the cause was called on the day calendar at the jury term, and having the case marked “ready,” and “passed for the day,” “ready by consent," &c.
    The defendants’ answer having put in. issue the allegations of the complaint, that the structures described therein impaired the light, air and ventilation of plaintiffs’ premises, and that the operation of the road appropriated any part, of plaintiffs’ property, judgment for • the relief demanded could uot be entered without a finding of fact that plaintiffs’ easement in the street was occupied by defendants.
    Appeal from judgment in favor of plaintiff, entered on the verdict of a jury, restraining the defendants from maintaining and operating an elevated- railroad in certain streets, in front of plaintiffs’ premises, in the city of New York, and for damages.
    This was an action by William Watson and others, as testamentary trustees, against The Manhattan Railway Company, The Metropolitan Elevated Railway Company, and the city of New York, for damages and an injunction.
    The complaint alleged plaintiffs’ title to the premises on the corner of Church street and Park Place, and the construction by the Metropolitan Company of an elevated railroad and station in those streets, and the operation of the railroad by the Manhattan Company, as the lessee of the Metropolitan Company, and with its consent, and continued as follows :
    66 XIX. Not one of the acts mentioned in paragraphs XL to XVIII., inclusive, of this complaint, were with the consent, leave or connivance of the plaintiffs or any of them, or of any of the cestuis que trusty represented by them, or with the payment or tender of any compensation for the damage to the plaintiffs, and to said cestuis que trust, resulting, or to result therefrom. No proceeding has been taken or instituted to condemn and appropriate the rights of the plaintiffs or said cestuis que trust to said land, buildings, vaults and streets, or any part thereof, or to any of such rights,
    “IX. The defendant, the Mayor, Aldermen and Commonalty of the city of New York, has authorized, and ratified the acts of its co-defendants heretofore herein complained of, and if the plaintiff had demanded of the said defendant that it should commence a suit to restrain the said unlawful acts of such co-defendants, it would have refaSed to do so.
    u XXI. The structures described in paragraph XI. of this complaint greatly diminish and impair the light, air and ventilation of the region beneath and about them ; they dampen and render unhealthy that region ; they interfere with the outlook of the plaintiffs’ said buildings ; these injuries are further much increased by the presence and passage of cars and trains of cars upon the railroad tracks, and by their stoppage at the said station ; the stairway and columns interfere with passage in the said streets and access to the said buildings ; the foundations choke up and. largely destroy the use and value of plaintiffs’ vaults.
    “ XXII. From the running of cars and trains of cars upon the railroad, results, almost incessantly during the day, and frequently during the night, a vibration in the neighboring buildings, a disagreeable and painful noise; a dropping and dispersing of oil, foul water, soot, cinders, coal-dust, and other disagreeable and noxious gases and smells.
    “ XXIII. The rental value of the plaintiffs’ said land, buildings and vaults, has been and. is therefore much decreased; the plaintiffs have been and are prevented from letting these buildings for use as private offices, and otherwise rearranging them so as to greatly enhance their value ; the buildings are discolored and rendered less durable and secure ; articles stored in the buildings are discolored, corroded and otherwise damaged; great inconvenience, and, in summer, great suffering are occasioned to the tenants by enforced closing of windows ; artificial illumination during the day-time is necessitated, and in many other ways the use and enjoyment of the said buildings and vaults are impaired.
    “XXIV. By the aforesaid actions of the defendants’ railway companies, the plaintiffs have already been damaged to the amount of $80,000, and if the said structures and their use he continued, the plaintiffs’ said property will be permanently depreciated in value to the amount of upwards of $200,000, and the plaintiffs will suffer a permanent injury and be damaged to the amount of $200,000.
    “ XXV. The defendant, the Metropolitan Elevated Railway Company, has pledged and mortgaged all its property and franchises to secure the payment of sums of money far in excess of their real value. Each and both of the said defendants is and are heavily indebted to the State and county of New York for the payment of taxes. Each and both of the said defendants is and are insolvent, and has and have no property or. assets of any kind that can by execution or any proceeding in aid thereof be made to pay the amount of any judgment for damages that might be recovered against them, or either of them, for the commission or continuance of any of their aforesaid acts. Damages alone would not be an adequate remedy to the plaintiffs for the injury resulting from the continuance of the said railroad and railway station. If their continuance is permitted, the plaintiffs, in order to obtain such relief as they can obtain by damages payable in money, will become involved in a multiplicity of suits and interminable litigation.
    “Wherefore plaintiffs demand judgment against the defendant railway companies, for the sum of $80,000 as their damages already sustained, and that the said defendants and all persons claiming under or acting under the authority of them, or either of them, be perpetually enjoined and restrained from maintaining or operating said railroad, or any elevated railroad, or maintaining any railway station through, upon or over Church street or Park place in front of the land of the plaintiffs; and that the said defendants abate the use of and remove said railroad and railway station from said streets in front of said land ; or that the said defendants shall be permitted to continue the existence and use of the said railroad and railway station, upon condition only, that the plaintiffs shall first be paid the sum of $200,000, and that until such payment the said defendants and all persons claiming under the authority of them or either of them, be enjoined and restrained from the operation of the said railroad as aforesaid ; and for such other and further relief as may be just, and for the costs of this action.”
    There was no allegation in the complaint, that defendants had erected the said railroad structures or operated and maintained the railroad thereon without authority from the legislature, or that the acts of the defendants complained of were other than those necessary for the proper use and operation of the railroad.
    By the answer of the defendants it appeared that the erection and operation oí the said railroad was duly authorized by the legislature of this State, and by the mayor, &c. of New York, and this does not appear to have been disputed upon the trial of the action.
    The case was noticed for trial by the plaintiff at a jury term before the court, and came on for trial at such jury term, before the chief judge and a jury. The defendants, after the case was opened, asked that the plaintiffs be directed to elect whether they sue in • this action for damages as for a continuing trespass caused by the portions of the structure opposite their premises, and by the running of trains thereon, or whether they sue for damages on the ground that a part of the easements of light, air, and access was interfered with when the road was erected and the trains began to run. That motion was denied, to which the defendants’ counsel excepted..
    The defendants’ counsel then moved that the cause be stricken from the calendar, and ordered to be fried at a special term as an equity case. The plaintiffs’ counsel put in evidence an affidavit in opposition to the motion, showing that upon the several days when the case had appeared upon the day calendar of the trial term, it was marked, with the consent of the defendant railway companies’ attorneys “ready,” “ready when reached,” “ passed for the day,” “ready by consent,” adjourned indefinitely, or set down for a particular day for trial, without such motion ever having been made, or notice or request to transfer the case to the equity term. That motion was denied, and to that defendants’ counsel excepted.
    The trial thereupon proceeded before a jury, and at the close of the evidence the court directed a general verdict for plaintiff, and submitted to the jury certain specific questions as to the amount of damage sustained by the plaintiffs for the period during which the defendants’ railroad was in operation, and the value of the easement of air, light and access, so far as it was permanently taken by defendants. Under such direction the jury found a general verdict for the plaintiffs, and answered the specific questions submitted to them.
    On the verdict, plaintiffs moved for judgment as prayed for in the complaint, and defendants moved to set aside the verdict on various grounds. The defendants’ motion was denied; plaintiffs’ motion was granted, and judgment entered, entitled at a trial term of the court, and reciting that the issues in the action had been u brought on for trial before Mr. Justice Sedgwick and a jury, at a trial term of this court, held,” &c., and the issues having been tried, and a written verdict for the plaintiffs having been rendered on October 14, 1885, now on motion of” plaintiffs’ attorneys, ‘‘it was hereby adjudged that the plaintiffs (naming them) recover of the.defendants,” the railway companies, the damages found by the jury to have been sustained by the plaintiffs up to the time of trial, from the operation and maintenance of the railroad structure, and enjoining and restraining the defendants liom ‘‘maintaining, or in any way using the elevated railroad structures,” and “ that in case the defendants tender to the said plaintiffs, their successors or assigns, for the purpose of execution by the latter,” a conveyance to defendants “ of so much of plaintiffs’ easements of light, air and access,” in said streets, as had been taken by defendants, and in case plaintiffs having executed the same and delivered it to defendants, said defendants shall pay' to plaintiffs 815,000 with interest, or in case the plaintiffs shall not execute the said deed of conveyance when so tendered, then the injunction thereby granted shall not be in any way inoperative.
    No finding of fact, was made by the trial judge. The judgment was entered on the verdict of the jury. This the defendants claim was error. Plaintiffs insist that the trial of the whole of the issues before a jury was regular, for the reason that the action was an action to" abate a nuisance, and that under Code Civ. Pro. § 968, an issue of fact in such an action must be tried by a jury.
    
      Julien T. Davies, and Charles A. Gardiner (Davies & Rapallo, attorneys), for the defendants, appellants.
    
      Henry L. Burnett, and Edward B. Whitney (Burnett & Whitney, attorneys), for the plaintiffs, respondents.
    
      
       O’Gorman and Ingraham, JJ.
    
   Ingraham, J.

—[After reference to the facts.]—The first question to be determined is the nature of the action as shown by the complaint.

From an examination of the complaint in this action, in connection with the authorities in this State, we are of the opinion that the action must be held to an equitable action to restrain the defendants from continuing to use and occupy with their railroad the portion of the streets adjoining plaintiffs’ property.

The character of the action is to be determined by the allegations of the complaint, and the nature of the relief demanded. In this case the allegations of the complaint are such as would entitle plaintiffs to an equitable judgment, enjoining the defendants from the unauthorized use of their property.

In Henderson v. N. Y. Central R R. Co. (78 N. Y. 423, 428), the relief sought was, first, damages; second, the abatement of the use of the railroad and the removal of the tracks ; third, an injunction against running the trains, or if the defendants are permitted to use the tracks, to do so only on condition that plaintiffs should first be paid in damages. The action was sustained as an action in equity, the court saying (p. 430) that plaintiff had the right to invoke the restraining power of a court of equity to prevent a multiplicity of suits, and could of course recover his damages as incidental to such equitable relief, and from that case, and the cases cited by the court, it appears that the jurisdiction of equity in such cases is firmly established in this State, and that a court of equity having once acquired jurisdiction, can proceed and give all the relief to which the plaintiffs would in any action and before any tribunal be entitled.

The nature of the action and the relief demanded in that action is almost identical with the case at bar.

The general term of this court in the late case of Clark v. Blumenthal (52 Super. Ct. [J. & S.] 355), decided that the test of the method of trial is the nature of the demand for relief. In this case, the judgment actually entered after the trial by the jury, was not a judgment for the abatement of a nuisance, but was an equity judgment, restraining the defendants from continuing the acts complained of.

The complaint stating facts entitling plaintiffs to equitable relief and asking judgment for equitable relief, and the judgment entered by plaintiffs being a judgment for equitable relief, it cannot be claimed on appeal that the action is not an equitable action.

The fact that the parties would be entitled to a trial by jury of some of the issues involved in an action, would not prevent the action from being an equitable action, but if one or more of the issues were so triable, the sections of the Code hereafter cited provide a method by which either party can procure the trial of such issues by a jury.

The construction and operation of the elevated railroad were authorized by the legislature. Its route was fixed under the authority of the legislature, and as such it was authorized with the consent of the city of New York to construct and operate its road. If, however, in such construction or operation it became necessary to use the property of an individual, it must acquire, either by purchase or proceedings under the General Railroad Act, the title to such property (Matter of Elevated R. R. Co., 70 N. Y. 327, 360), and any appropriation of private property, without acquiring title to it, would be trespass (Uline v. N. Y. Central, &c. R. R. Co., 4 Eastern Rep. 30, 34).

The action, therefore, being an equitable action to-be tried as an action in equity, the question is presented, whether the trial of such an action before a jury, is such an error as would require a reversal of the judgment and the direction of a new trial.

Trials of issues in civil actions are regulated by chapter 10 of the Code of Civil Procedure, and section 965 of the Code provides that “ an issue either of law or fact must be tried as prescribed in this chapter, unless it be disposed of as prescribed in chapter 6 of this act.” Section 968 prescribes the actions that are triable by a jury, and section 969, the actions that are triable by the court. This last section provides that an issue of law in any action, and an issue of fact in an action not specified in the last section, and wherein provision for a trial by a jury is not expressly made by law, must be tried by the court, unless a reference or a jury trial is directed ; and section 970 provides the manner in which a jury trial in such an action shall bé directed. The party entitled to a jury trial may apply on 'notice to the court for an order directing all the questions arising upon such issues to be distinctly and plainly stated for trial, and upon the hearing of the application the court must cause the issues, to the trial of which by a jury the party is entitled, to be distinctly and plainly stated. By section 971, it is provided that in an action where a party is not entitled, as of right, to trial by jury, .the court may, in its discretion, uponhe 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 those questions to be distinctly and plainly stated for trial accordingly ; and by section 972 it is provided that if the questions directed to be tried by the jury as prescribed in the last two sections, do not embrace all the issues of fact in the action, the remaining issues of fact must be tried by the court or by a referee.

By section 1022 it is provided that the decision of the court on the whole issue of fact must state separately the facts found ; and the conclusions of law, and it must direct the judgment to be entered thereupon, and by section 1225 it is provided that in an action triable by the court, where one or more specific questions of fact, arising upon the issues, have been tried by a jury, judgment may be taken upon the application of either party as follows :

First: If all the issues of fact in the action are determined by the finding of the jury, or the remaining issues of fact have been determined by the court or a referee, an application for judgment may be made upon the whole issue, as upon a motion; and Second, if one or more issues of fact, remain to be tried, judgment may be rendered upon the whole issue at the term of the court where or by direction of the referee by whom tln?y are tried.

I have stated the provisions of the Code controlling the trial of civil actions in full, and these sections contain the only provisions that authorize a jury trial in actions not specified in section 968; and except where the proceedings authorized by those sections have been taken, the provisions of section 969 appfiy, and the issues must be tried by the court.

The system for the trial of actions provided by the sections above mentioned, preserves the distinction between actions which were formerly called equitable and of which the court of chancery had cognizance, and those called actions at law, which were determined in a court of law, although both classes of actions are now tried by the same court.

The method of the trial of the two classes of actions are very different. The legislature has provided that the issues of fact in an equity case must be tried by the court, unless the court should send either one or more of the issues of fact to be tried by a jury, in which case an order must be made specifying the issues to be passed upon by the jury, and for that purpose the questions to be answered by them must be distinctly stated.

The case of Hammond v. Morgan, 3 Eastern Rep. 868, was an action for the recovery of certain letters patent, &c., claimed to have been delivered by the plaintiffs to defendant, and the return of which were demanded. The issues were brought on for trial by the plaintiff at a special term, and were on motion of defendant sent by the special term to a jury term for trial. No issues were framed, and a general verdict having been rendered on the trial before a jury in favor of the plaintiff, the court entered on such verdict an equity judgment, directing the return of the instruments to recover which the action was brought. A motion was made to set aside such judgment as irregular, which was denied in the court below, but the judgment was reversed by the Court of Appeals. In the opinion in that case, Bable, J., says : “ In that event, (viz: the action being treated as an equity action) the case was properly noticed at the special term, and should there have been fried before the judge without a jury, unless at his instance or upon the motion of one the parties, some or all of the issues were ordered to be tried before a jury ; and for that purpose the questions to be answered by them should have been distinctly framed. In such case the issues are sent to a jury for the aid and information of the court. If the facts thus submitted to and answered by the jury, together with the facts admitted by the pleadings, cover the whole case, so that no further facts need be proved for the information of the court, motion may at once be made for judgment.55

In the case at bar there was no order of the special term sending issues to the jury for trial; no issues were framed to be tried by a jury. The plain tiff brought the case on for trial where it was not triable, and where, despite the exception of the defendant, it was tried, not as an equity case, but as an action ate law.

Under the sections of the Code above cited, and the decision of the Court of Appeals in Hammond v. Morgan (supra),we think the motion of the defendant’s counsel that the case be stricken from the calendar, and ordered to be tried at special term as an equity case, should have been granted.

Plaintiff insists, however, that the defendant by his proceedings prior to making the motion, had waived his right to demand a trial before the court without a jury.

We have examined the facts upon which the plaintiff claimed the defendant waived such right, and do not think they can be said to' have that effect. The action, as before stated, was for damages sustained up to the time of the commencement of the action, and for an injunction, and the plaintiff by waiving his claim for equitable relief could have tried his action before a jury for the damages therein claimed ; and it appears that defendant made his motion for the trial to which he was entitled as soon as it was developed by the opening of the case that the equitable relief would be insisted on, and we think that that was in time. The fact that one of the defendants, after plaintiff had noticed the case for trial at a jury term, also noticed the case for trial at the same term, was not a waiver of his right to object when the case was called for trial. See Wheelock v. Lee, 74 N. Y. 495, 500.

The case of People v. Metropolitan Telephone Co., 31 Hun, 596, does not help the plaintiff. That was plainly an action to abate a nuisance, and was one of the actions specified in section 968 of the Code which was triable before a jury. But in that case it was held that a judgment which included equitable relief in directing the removal of the obstructions in the streets could not be sustained on the general verdict for plaintiff, and to authorize the court to interfere with' the existence of the poles, there should have been a finding in some form to show which of them, and to what extent they exceeded the necessary bounds prescribed by the statute.

We are also of the opinion that the verdict of the jury, in the form in which it was rendered, was not sufficient to sustain the judgment' entered thereon.

The answer of the defendant railway companies puts in issue the allegations that the structure described in the complaint, diminished and impaired the light, air and ventilation of the plaintiffs’ premises, and that the structure or operation of the road appropriated any of the plaintiffs’ property, and before plaintiff was entitled to the relief demanded, there must be some finding of fact that plaintiffs’ easement in the street was occupied by defendants.

On the trial there was evidence tending to show, that that easement was not appropriated or used by defendants. That question was not submitted to the jury, nor was there any finding of fact on that issue.

In the case of Hammond v. Morgan (supra), it was held that, “and if the finding of the j ury together with the facts admitted in the pleadings do not cover the whole case, and other issues remain to be tried, or other facts requisite for equitable relief remain to be proved, then the case must be regularly brought to a hearing before the court, where the court may or may not adopt the finding of the jury, and other facts may be proved, and in such case the court must make findings of fact and law, to which exceptions may be taken by either party desiring to appeal.”

It appears, in this case, that, after all the evidence was in, the trial judge, in charging the jury, said: 66 As matter of law, plaintiff sustained injury to some extent; if nominal only, that would require you should find for plaintiff, and therefore your answer to the first question, 6 Do you find for plaintiff ? ’ will be ‘ yes’,”

That was simply a direction to the jury to find that plaintiff had been injured by the defendant, and there was no finding of the jury, that the structure of the elevated railroad company was an impairment of, or an appropriation of, the plaintiffs’ easement.

As we are of the opinion, however, that the action was improperly brought on for trial before a jury, the judgment must be reversed on that ground, and a new trial ordered, with costs to the appellant to abide the event of the action.  