Cogswell v. New York, N.H.&H.R. Co.
| Decision Date | 19 April 1887 |
| Citation | 105 N.Y. 319,11 N.E. 518 |
| Parties | COGSWELL v. NEW YORK, N. H. & H. R. Co. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from general term superior court, New York.
H. H. Anderson, for appellant.
Lewis Johnston, for respondent.
The complaint demands both legal and equitable relief. It prays judgment for damages and an abatement of the nuisance, and also for an injunction restraining the defendant from continuing the nuisance, and from permitting its lands to be used for the purpose of carrying on any operation thereon which shall injure the plaintiff in the enjoyment of her property, The remedy for damages and for the abatement of a private nuisance could at common law be obtained in a legal action, technically known as an assize of nuisance. It was a part of the judgment that the nuisance be abated. 3 Bl. Comm. 220; Waggoner v. Jermaine, 3 Denio, 306. The legal remedy by writ of nuisance for the recovery of damages, and an abatement of the nuisance, was retained by the Revised Statutes, (2 Rev. St. 332;) and, though the proceeding by writ of nuisance has been abolished, the same relief may be now had in an ordinary civil action under the Code, (Code Proc. § 454; Code Civil Proc. § 1662.)
It was held in Hudson v. Caryl, 44 N. Y. 554, that as, by the common law, an action for damages and for the abatement of a nuisance was triable by jury, the defendant could not be deprived of the right to a jury trial upon these issues, although the plaintiff in his complaint also demanded equitable relief. In the present case the plaintiff is the party insisting upon the right to a jury trial, not withstanding the fact that she framed her action asking, not simply the relief which could be obtained by a writ of nuisance at common law, but also relief by injunction, which a court of law was not competent to grant. The constitution (section 2, art. 1) secures to a party the right to a jury trial in all cases where before its adoption this mode of trial was used.
This is not a case which as a whole, and in both aspects, was triable by jury at the adoption of the constitution, nor is it one where, under the present system, the plaintiff is compelled to unite her claims for both equitable and legal relief in the same action. Rights may be waived, or a party may by his own act preclude himself from asserting them. We think it is a reasonable rule, and one in consonance with the authorities, that, where a plaintiff brings an action for both legal and equitable relief in respect to the same cause of action, the case presented is not one of right triable by jury under the constitution, and that the plaintiff by such election submits to have the issues tried by the court, or by the court with the aid of a jury, as the court in its discretion may determine, according to the practice in equity cases. See Davison v. Associates in Ferry Co., 71 N. Y. 333;New York & N. H. R. Co. v. Schuyler, 34 N. Y. 46;Baird v. The Mayor, etc., 74 N. Y. 382.
This is not, we think, an action for a nuisance within section 968 of the Code of Civil Procedure.1 The action of...
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...right remains, it is the right of the defendant. Davison v. Associates of the Jersey Co., 71 N. Y. 333, 340;Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y. 319, 11 N. E. 518;Carroll v. Bullock, 207 N. Y. 567, 101 N. E. 438;Brinckerhoff v. Bostwick, 105 N. Y. 567, 572,12 N. E. 58;Mackella......
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... ... waives a jury himself. 24 Cyc. 158; Cogswell v. New York, ... N.H. & H.R.R. Co. 105 N.Y. 319. The correctness of this ... latter rule is not ... ...
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...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. Railroad Co., 105 N. Y. 319, 11 N. E. 518. The two cases from the United States supreme court which have been cited (Beedle v. Bennett, 122 U. S. 71, 7 Sup. Ct. 1......
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