Associated Metals & Minerals Corp. v. Dixon Chemical & Research, Inc.

• Decision Date: 01 October 1958
• Docket Number: No. C--2365,C--2365
• Citation: 145 A.2d 49,52 N.J.Super. 143
• Parties: ASSOCIATED METALS AND MINERALS, CORP., a New York corporation, Plaintiff, v. DIXON CHEMICAL & RESEARCH, INC., a New Jersey corporation, Defendant and Third-Party Plaintiff, Glens Falls Insurance Company, a New York corporation, Third-Party Defendant. . Chancery Division
• Court: New Jersey Superior Court

Page 143

52 N.J.Super. 143

145 A.2d 49

ASSOCIATED METALS AND MINERALS, CORP., a New York corporation, Plaintiff, v. DIXON CHEMICAL & RESEARCH, INC., a New Jersey corporation Defendant and Third-Party Plaintiff Glens Falls Insurance Company, a New York corporation Third-Party Defendant.

No. C--2365.

Superior Court of New Jersey Chancery Division.

Oct. 1, 1958.

Riker, Emery & Danzig, Newark (Theodore McC. Marsh, Newark, appearing), for plaintiff.

Shaw, Pindar, McElroy & Connell, Newark (Robert Shaw, Newark, appearing), for defendant and third-party plaintiff.

Budd, Larner & Kent, Newark (Samuel A. Larner, Newark, appearing), for third-party defendant.

KOLOVSKY, J.S.C.

Plaintiff has moved, several months after joinder of issue and just prior to a scheduled pretrial conference, for leave to file both an amendment to the complaint and a supplemental complaint.

Defendant, although expressing no basic objection to the granting of the leave sought, contends that since the equitable phase of the case has become moot by reason of the circumstances hereinafter detailed, it is now entitled to demand a trial by jury; particularly if the complaint is amended and supplemented. Plaintiff disagrees.

At the time the complaint was filed, plaintiff and defendant occupied neighboring parcels of vacant land at Port Newark. Plaintiff used its land for the open storage and handling of steel, iron and other metal products. Defendant used its land for the storage and handling of sulphur, most of which arrived by ships which docked at nearby piers.

The complaint alleged that the sulphur was transported and piled in unprotected mounds so that sulphur powder and particles were blown upon plaintiff's land and by combination with oxygen and moisture from the air formed sulphurous acid which corroded the steel and other metal products which plaintiff stored there. In addition, it was alleged, the sulphur particles and powder prevented plaintiff's employees from performing their duties effectively.

Charging that defendant threatened to continue the conduct complained of, alleged to constitute negligence, as well as the maintenance of a nuisance, the complaint, filed in the Chancery Division, demanded:

'* * * judgment against the defendant as follows:

'1. Restraining and enjoining defendant, its officers, agents and employees from creating or maintaining any unprotected mound or mounds of sulphur and sulphur powder on its leased premises at Port Newark, New Jersey, or permitting such sulphur powder to be blown about by air currents and deposited onto the property of the plaintiff as described in the complaint and from removing the same in uncovered or unprotected trucks or other conveyances and from otherwise continuing the nuisance described in the foregoing complaint.

'2. For damages in the amount of $500,000.00.

'3. For costs of suit.'

Defendant's answer, the filing of a third-party complaint against its insurance carrier and an answer by the third-party defendant, and listing of the case for pretrial conference followed in due course. No demand for trial by jury (R.R. 4:39--1) was filed; both plaintiff and defendant agree that since the primary relief sought by the complaint was equitable, an injunction, there was no right to a jury trial on the incidental legal issue of money damages. Steiner v. Stein, 2 N.J. 367, 66 A.2d 719 (1949); Garrou v. Teaneck Tryon Co., 11 N.J. 294, 94 A.2d 332, 35 A.L.R.2d 1125 (1953); cf. Walden v. Pines Lake Land Co., 126 N.J.Eq. 249, 8 A.2d 581 (E. & A.1939).

But it now appears from concession of all counsel, although no affidavits accompany plaintiff's notice of motion (cf. Schnitzer & Wildstein, N.J.Rules Serv., A IV--411, 375), that equitable relief is no longer necessary nor appropriate. Some six months after the action was instituted, defendant vacated its premises at Port Newark; sulphur is no longer stored there and the alleged nuisance no longer exists. The prayer for an injunction has become moot and the only relief which plaintiff can obtain is a judgment for damages.

Where it not for the additional considerations arising from the proposed amendment and supplement to the complaint, the fact that equitable relief has become unnecessary or inappropriate would not entitle defendant to either a transfer of the action to the Law Division nor a jury trial, for plaintiff's good faith in invoking equitable jurisdiction by the original complaint is not open to doubt. Mantell v. International Plastic Harmonica Corp., 141 N.J.Eq. 379, 55 A.2d 250, 173 A.L.R. 1185 (E. & A.1947); Steiner v. Stein, 2 N.J. 367, 66 A.2d 719 (1949); Fleischer v. James Drug Stores, 1 N.J. 138, 139, 62 A.2d 383 (1948); Morris May Realty Corp. v. Bd., etc., County of Monmouth, 33 N.J.Super. 93, 109 A.2d 468 (Ch.Div.1954), modified 18 N.J. 269, 113 A.2d 649 (1955).

As Mr. Justice Heher said in Mantell v. International Plastic Harmonica Corp., supra, 141 N.J.Eq. at page 393, 55 A.2d at page 259:

'Ordinarily, the jurisdiction of equity is tested by the facts existing at the inception of the suit; and if the complainant is then entitled to equitable relief, equity's jurisdiction to settle all the issues, even though purely legal in nature, and to award damages for the breach of a legal right involved in the suit, will not be defeated by subsequent events which render equitable relief impracticable or unnecessary or unsuitable. Rooney v. Weeks, 290 Mass. 18, 194 N.E. 666; Ricaby v. McCrory Stores Corp., 6 Cir., 35 F.2d 14; Pomeroy's Equity Jurisprudence, 5th ed., section 237e; 30 C.J.S. Equity, §§ 67, 74, pp. 419, 430; 19 Am.Jur. 132. This must necessarily be so, for the rationale of the rule that an equitable feature draws the cause completely within the cognizance of equity is the policy of avoiding 'a multiplicity of suits.' Pomeroy's Equity Jurisprudence 5th ed., sections 181, 243. For a more extended application of the rule, see case cited in Buttinghausen v. Rappeport, 131 N.J.Eq. 252, 24 A.2d 877.'

The federal cases are in accord (5 Moore's Federal Practice (2d ed.), paragraph 38.19(2)) in applying Rule 38 of the Federal Rules of Civil Procedure, 28 U.S.C.A., dealing with 'Jury Trial of Right.' It may be noted that Rules 38(b), (c) and (d) are prototypes of our present rules relating to demands for, and waiver of, jury trial (R.R. 4:39--1 to 3, as amended June 27, 1955).

On the other hand, if, because the equitable relief prayed has become moot, the complaint is amended to eliminate the prayer for equitable relief, leaving only the claim for damages, a right of jury trial arises and may be demanded. Bereslavsky v. Caffey, 161 F.2d 499 (2 Cir., 1947), certiorari denied 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355; Bereslavsky v. Kloeb, 162 F.2d 862 (6 Cir., 1947), certiorari denied 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393; Tynan v. RKO Pictures, Inc., 77 F.Supp. 238 (D.C.S.D.N.Y.1947); Canister Co. v. Leahy, 191 F.2d 255 (3 Cir., 1951), certiorari denied 342 U.S. 893, 72 S.Ct. 201, 96 L.Ed. 669. Although no New Jersey case appears to have considered the question, the principle of the cited federal cases is sound.

In Bereslavsky v. Kloeb, supra, plaintiff, alleging a patent infringement, filed a complaint seeking an injunction, an accounting of profits and damages. Before the case was tried, the patent expired; thereafter, with leave of the court, plaintiff amended his complaint to strike the prayers for equitable relief, leaving only the claim for money damages. In holding...