McNulty v. . Mt. Morris El. Light Co. , 172 N.Y. 410 ( 1902 )

I agree with Judge BARTLETT'S conclusion that there should be a new trial in this action, but differ with him in so far as he holds that the trial court did not err in refusing to grant defendant's motion to have the action tried on the common-law side of the court.

It appeared when this case was moved for trial that the plaintiff was not then entitled to equitable relief, although he was so entitled at the time of the commencement of the suit. It is undoubtedly the rule and long has been that when equity takes jurisdiction it will draw to itself all matters necessary to a final disposition of the controversy, as where an injunction is granted, if damages have resulted by reason of the acts restrained, equity will admeasure and award the damages as part of the relief. But while equity has this power it will not exercise it for the purpose of depriving a litigant of his right of trial by jury — "the fundamental Guaranty of the rights and liberties of the people" — when the question of damages is the only question presented for decision. Courts are jealous in protecting this great right instead of seeking opportunities for depriving litigants of it. This action was properly brought on the equity side of the court, but before the cause was reached for trial plaintiff had passed out of the possession of the property, thus parting with the right to the injunction, and there remained to him only his claim for damages. For that reason defendant's motion to have the action tried before a jury should have been granted.

The authorities cited in support of the contrary position do not in my judgment sustain it. The first is Van Allen v.N.Y.E.R.R. Co. (144 N.Y. 174), brought by the owner of premises abutting on a street through which an elevated road ran, to restrain the operation and maintenance of the road and for damages. Plaintiff sold the premises before the trial and thereby parted with his right to an injunction, leaving only the question of damages. Counsel for both parties, however, stipulated that the action be sent to a referee to determine all the issues. It was not until the action came on before the referee that defendant attempted to raise the point that he was entitled to have the question of damages submitted to a jury. It was then too late. As this court said (page 178): "The defendants were not entitled to a jury trial, for the reason that they had waived it by consenting that the claim for damages should be referred with the claim for an injunction, and the fact that the latter had been transferred to another by the conveyance, at the trial or during the pendency of the action, did not deprive the referee of jurisdiction so long as any cause of action remained. The right of trial by jury having been waived, there was no longer any question except whether the trial should be had in a court of law or a court of equity, and, since both remedies are now administered by the same court and under the same procedure, the defendants' contention related to forms and not to matters of substance, and was not material."

The next case cited is Valentine v. Richardt (126 N.Y. 272), in which plaintiff sought to set aside the conveyance made to defendant Richardt on the ground that it was fraudulent and void as against him, and upon the trial it was held to be fraudulent and void, but the court could not vest title in plaintiff because Richardt had sold the land to a purchaser in good faith. The conclusion, however, was reached that a court of equity could require Richardt to turn over to plaintiff the money he had received for the land, inasmuch as he had put it out of his power to convey the land. In this court it was said: "The fraudulent conveyance which the defendant obtained from the owner of the land enabled him to sell it to a purchaser in good faith, and the money that he received therefor, with the interest thereon, can, for all the purposes of this case, be considered in equity as the land itself." It is apparent from the decision, therefore, that this case is not an authority on the proposition, and it should also be noted that no such question was raised by motion or otherwise either before or at the trial.

In the next case cited (Koehler v. N.Y.E.R.R. Co., 159 N.Y. 218) the grantee of the original plaintiff was brought in as a party plaintiff before trial, and, though the defendant opposed the order joining him as plaintiff, no motion was made to go to the jury until the trial. This court said (Judge BARTLETT writing): "It thus appears that the question of defendant's strict right to a jury trial in a case where seasonable application had been made was not presented for adjudication." Also: "The presence of the present owner as plaintiff preserves the equitable features of the case and permits the court, sitting in equity, to retain jurisdiction."

Henderson v. N.Y.C.R.R. Co. (78 N.Y. 423) holds simply that when a court of equity grants an injunction it may also grant with it the incidental relief of damages. All the land abutting on the street had been sold, but the court enjoined the defendant railroad from using the street until it had acquired plaintiff's title thereto. The court alluded to the question of plaintiff's right to recover the damages accrued to the property sold, but said that question "has not been raised upon this appeal, nor was any objection made upon that ground before the referee; we are not, therefore, embarrassed by it."

When an equitable suit for an injunction, to which has been joined, as a mere incident and to avoid multiplicity of suits, a legal claim for damages, is, by plaintiff's conveyance of the land, shorn of all its equitable features, leaving nothing but a legal claim for damages, the right to a trial by jury cannot be denied unless it has been waived, as was done by the defendant inPegram v. N.Y.E.R.R. Co. (147 N.Y. 135), where the court said: "Had the objection been raised in a proper way or at the proper time, I think the defendants could have insisted upon a trial upon the law side of the court. * * * But not having done so, it was not error" for the court, sitting in equity, to assess the damages.

So far I have considered this matter as if the inquiry were whether in every action brought to secure equitable relief the court should on motion send the case to a jury for trial, upon its appearing that the right to equitable relief had passed away after the commencement of the suit. And I shall conclude in that vein. But the fact should not be lost sight of that in cases of this character, viz., actions to abate a nuisance and recover the damages occasioned thereby, trial by jury is a matter of right for the defendant, even if the complaint is in form as for equitable relief against the continuance of a nuisance, the prayer for damages being incidental thereto. And this is so, because, prior to the adoption of the Constitution, the existence of an alleged nuisance and the amount of damages were both submitted to a jury for decision, and, hence, the constitutional guaranty of trial by jury applies to such an action as one of the "cases in which it has been heretofore used." (Hudson v. Caryl, 44 N.Y. 553; Cogswell v. N.Y.,N.H. H.R.R. Co., 105 N.Y. 319.)

The two cases from the United States Supreme Court which have been cited (Beedle v. Bennett, 122 U.S. 71; Clark v.Wooster, 119 U.S. 325) do hold that in actions in United States courts for an injunction and damages for the infringement of patents, the fact that by the expiration of the patent the ground for an injunction has disappeared, does not preclude the court sitting in equity from granting the incidental relief of damages. But the reason for this rule in the United States courts is plain. Though the same courts have cognizance of both equitable and legal causes the practice and the pleadings are entirely different for each class of cases and if a proceeding brought on the equity side of the court is not one of equitable cognizance, the cause must be dismissed and a new proceeding must be instituted at law. (Hipp v. Babin, 60 U.S. 271; Fenn v.Holme, 62 U.S. 481; Thompson v. Railroad Companies,73 U.S. 134; Killian v. Ebbinghaus, 110 U.S. 568; Scott v. Neely,140 U.S. 106; Hollins v. Brierfield C. I. Co.,150 U.S. 371.) In Thompson v. Railroad Companies the court said: "Has a court of equity jurisdiction over such a case as is presented by this record? If it has not, the decree of the court below must be reversed, the bill dismissed and the parties remitted to the court below to litigate their controversy in a court of law. * * * The Constitution of the United States and the acts of Congress recognize and establish the distinction between law and equity. The remedies in the courts of the United States are, at common law or in equity, not according to the practice of state courts, but according to the principles of common law and equity, as distinguished and defined in that country from which we derive our knowledge of these principles. `And although the forms of proceedings and practice in the state courts shall have been adopted in the Circuit Courts of the United States, yet the adoption of the state practice must not be understood as confounding the principles of law and equity, nor as authorizing legal and equitable claims to be blended together in one suit.'"

It appears, therefore, that while in our Supreme Court equitable and legal relief are possible under the same pleadings and a strict enforcement of the rule that makes actions at law triable by jury would, in a case like the one at bar, result in no hardship, but would only entail a shifting of the cause from the equity to the law side of the court, the trial proceeding there on the same pleadings, in the United States courts the strict enforcement of the rule would necessitate the dismissal of the proceedings and the plaintiff would be forced to begin a new action at law or abandon his cause. It seems plain to me, therefore, that the United States courts have adopted the practice disclosed by the two cases cited in order to avoid multiplicity of suits and to save both parties from the hardship of resorting to another action for the decision of their controversy in a case where, when the suit was begun, plaintiff was entitled to equitable relief. And, hence, this court is not warranted in following the practice of the United States courts in this respect, thereby abandoning its own settled practice, which is not only workable, but more nearly conforms to the letter and spirit of the constitutional provision guaranteeing trial by jury.

It follows, therefore, that the denial of defendant's motion for a jury trial in this case was error.

The judgment should be so modified as to grant a new trial, and as so modified affirmed, costs in all courts to abide the event.