Kinne v. Kinne

E. Daewin Smith, J.

This case presents but a single question for our consideration. It is, whether the objection taken at the beginning of the trial to the trial of said cause by the court without a jury was valid, and the exception to the decision of the judge at special term overruling such objection, and the defendants’ motion for a jury trial, and proceeding to try said cause without a jury, was well taken.

Dower is unquestionably a strict legal right. It is an estate in land recognized and protected by magna charta, and primarily, in England, was assigned and recovered by proper proceedings in the courts of the common law.' But the courts of equity, as early as in the reign of Queen Elizabeth, assumed a remedial jurisdiction over claims of dower. The earlier cases in which courts of equity entertained bills relating to dower were cases where the aid of the court was invoked, and necessary for the purposes of discovery and for the removal of impediments or frauds obstructing the assertion or establishment of the rights of the doweress in the courts of law; and, gradually, the courts enlarged their jurisdiction till they finally came to assert and exercise a concurrent jurisdiction with the courts of law, to give full relief where they had acquired jurisdiction for the purpose of discovery, or otherwise where the right of the widow to dower was not denied or contested.

But where the right to dower was controverted, the English courts of equity have uniformly held that the question of right must be tried at law. Curtis v. Curtis, 2 Bro. 633; Mundy v. Mundy, 2 Ves. Jr. 128; Parks on Dower, 329.

In Mundy v. Mundy, supra, the Lord Chancellor said that, “ If a legal title, such as.dower, is controverted it must be made out at law.” Chancellor Kent asserted the same rule in Swaine v. Perine, 5 Johns. Ch. 488, and in 4 Kent Com. 72, following these English cases, as did Chancellor Walwobth in Badgley v. Bruce, 4 Paige, 100.

In this last mentioned case the chancellor said the rule is that “if the title of the complainant is denied, the court will retain the bill and direct a suit at law to try the title, and will then give possession and decree such other relief as the plaintiff may be entitled to on the rights thus established.”

Such was doubtless the rule and practice in the courts of equity in this State .before the adoption of the constitution of 1846, by which legal and equitable jurisdiction was given to and united in the same, court.

As this court under the constitution now possesses and exercises full and complete general jurisdiction, both in law and equity, this question has only the practical consequence that it affects the mode of trial.

The right of trial by jury, in all common-law actions and in respect to all legal rights, as it existed when our first State constitution was adopted, is retained in the present constitution (art. 5, § 2). It follows, I think, necessarily from these considerations that the defendant’s claim and demand for a jury trial, made at the trial, was well founded, and that he could not be deprived of such right by the court. Davis v. Morris, 36 N. Y. 572; Hudson v. Caryl, 44 id. 553.

In the last entitled case the action was in equity to abate a nuisance and recover damages. The defendant claimed a trial by jury when the cause came on.for trial, as was done in this case, which was denied and the trial was had by a judge without a jury. The judgment was reversed on this precise ground and the anology between that case and this, it seems to me, is complete and perfect.

In a similar case of nuisance, in this department, we have recently held, in the case of Parker v. Laney 1 N. Y. Sup. 590, that, in such case, the issue must be tried at law, and the case then be brought on for a hearing at special term, for any equitable relief dependent upon, or incidental to, the determination of the jury, upon the main issues tried at the circuit, to which either party may be entitled.

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Judgment accordingly.