Ryan v. Murphy , 101 N.Y.S. 553 ( 1906 )

Ingraham, J. (dissenting):

I do not concur in the reversal of this, judgment. The relief that the plaintiff demands is that the defendants and each and all of them, and every person claiming through or under them or any of them, be adjudged to have no claim or right to. any estate, right, title or interest in the premises described in the complaint, and that they may be adjudged to have no lien or'incumbrance thereon, and that the defendants and all persons or corporations claiming through or under them or any of them be forever barred from any and all "claims of any interest, lien or easement in said premises.

The relief thus demanded is essentially equitable. As a defense to such an equitable action the defendant is authorized by section 1641 of the Code of Civil Procedure to claim.an estate in the property described in the complaint; and where such a defense is set up in the answer, under section 1642 of the Code of Civil Procedure, the subsequent proceedings, including the trial, judgment and execution, are the same as if the suit was. an action of ejectment, except as otherwise expressly prescribed in the title of the Code, of which these sections are a part.^*

That the action, notwithstanding such a defense, remains an equitable action is shown by section 1645 of the Code of Civil Procedure which provides that the “ final judgment for the plaintiff must be to the effect that the defendant and every person claiming under him by title accruing after the filing of the judgment-roll or of the notice of the pendency of the action, as prescribed in article ninth of this title,^† be forever barred from all claim to any estate of inheritance or for life or for a term of years not less than ten in the property, or such judgment must be that the defendant and every person claiming under him, as above stated, be forever barred from all claim to any interest or .easement in or lien or incumbrance upon the said property of any "kind or nature whatsoever, or of any particular interest,, easement, lien or incumbrance specified in said judgment, and the court may direct any instrument purporting to create any such interest, easement, lien or incumbrance to be delivered up or to be canceled of record, or two or more of said forms of judgment may be awarded in the- same action.”

This equitable judgment must be' entered by a court of equity, aild. while either party has a right to a trial, by jury as to a defendant’s title, the application for final judgment must ¿orne back ‘to a court of equity. Thus I think it may be said that where- the relief demanded is. essentially of equitable cognizance, authorized by section 1645 of the- Code, that the title of the Code of which section 1642 and section 1645 are a part, does otherwise provide so that the whole -action is -not to be tried before a jury, but only the issue raised by the answer which presents the same question as would be presented in -an action of ejectment. "After the issue of fact is determined the question as to the proper judgment' on the facts found must be determined. Section 1645 provides for two kinds of relief that may be awarded or both may be included in the judgment. If tiré case is to be tried by a jury like an action of ejectment' the jury .would have to determine. which relief the plaintiff is entitled to. This would bring the case within Section 970-of the Code of Civil Procedure which, provides that “ where a party is, entitled' * * * to a trial by a jury * * * in an action not specified in section nine hundred and sixty-eight 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.” . The proper course, therefore, it seems to' me, was for either party desiring a jury trial to have applied to have issues framed to be thus tried-, and having, failed to make such application before the trial thé defendants waived.the right to have any of the issues, in the action tried by a jury.

It appears: by the Statement -annexed to the case that the action was commenced by the service-of a summons on July 8, 1905. As . that was part of the record no independent proof of the date of the commencement of the action was required, and the evidence shovyg that the plaintiff was in actual possession of the property for more than one year prior to that date.

I also think that the deed from the mayor, aldermen and commonalty of the city of Rew York was sufficiently proved and that it must be presumed in the absence of evidence to the contrary that the public officers who executed that conveyance complied with the statute and that the deed was valid.

I think, therefore, that the judgment should be affirmed.

Judgment reversed, new trial ordered, costs to appellants to abide event. Order tiled.

* See Code Civ. Proc. chap. 14, tit. 1.— [Rep.

† See.Cqde Civ, Proc, chap. 14, tit. 1, art, 9.— [Rep,