1 N.Y.S. 21 | N.Y. Sup. Ct. | 1883
This action is to restrain the continuance of a nuisance, and also to recover the damages caused by it. It is properly triable before a jury. Their verdict determines whether the nuisance exists, aiyl, if so, the amount of damages the plaintiffs have sustained from it. This appears to be a constitutional right of the parties. Hudson v. Caryl, 44 N. Y. 553. Whether an injunction should be granted is a question for the court. But, the right of trial by jury being constitutional, the court must, unless it sets the verdict aside and orders a new trial, adopt the facts found by the jury. The practice in this case was substantially right, but as the court refused to award an injunction, and the plaintiffs do not appeal, the question upon the defendant’s appeal is, simply, whether any error has been committed to the prejudice of the defendant in the trial of the case upon the question of damages.
The plaintiff was allowed to recover damages down to the time of the trial. If the action had-been simply an action at law for damages, this would have been error, (Uline v. Railroad, Co., 101 N Y 109, 116, 4 N. E. Rep. 536;) but as the action was for relief, both in law and equity, it was proper for the court to allow a recovery for damages down to the day of the trial, because, when a court of equity once has jurisdiction of a case, it awards all the relief the nature of the case demands, (Church v. Church, 73 N. Y. 95.) It is distinctly held in Henderson v. Railroad Co., 78 N. Y. 423, that in an equitable action brought to restrain a continuing trespass, and for damages, and in which the injunction was denied, full damages might be given, not only to the day of trial, but once for all; that such full relief is incident to jurisdiction in equity. In the Uline Case, Judge Earl, who dissented in the Henderson Case, is very careful, in writing the opinion of the court, to distinguish between the damages recoverable in such cases when they are brought at law and when they are brought in equity; and he says that the rule announced in the Henderson Case is not in conflict with the rule announced in the Uline Case. The propriety of the rule is illustrated by this case. The trial judge, after the verdict, was asked to award an injunction. He refused, in the exercise of his discretion, and assigned as a reason that the verdict seemed to him to be adequate to compensate the plaintiffs for the damages they had sustained, and, in view of the situation of the two properties, the plaintiffs ought to be left to their remedy in damages. How, it was competent for the trial court—was its duty—to give full’ relief, and because the damages were given down to the trial the court regarded them as full relief. Clearly, if the damages had only been given to the commencement of the action, eight years before the trial, the court of equity, whose jurisdiction it is to do the justice in one action which in law can only be done in a multiplicity of actions, would have fallen short of the full measure of its duty.
The evidence tended to show that the rental value of the first floor of the plaintiffs’ house had been impaired by the nuisance. The measure of damage for this loss was the difference in the rental value free from the effects of the nuisance, and with it during the period of its continuance. Francis v. Schoellkopf, 53 N. Y. 152. Permanent injury was done to the wall of plaintiffs’ house by the nuisance. The market value of the house was depreciated. The plaintiffs were also entitled to recover the difference in the market value of the house free from the permanent injuries caused by the nuisance and with them. The appellant does not complain of this rule, but claims that she is only liable for the damages, both in depreciation of rent and in market value of the property, from the time she had notice of the alleged injury until the commencement of the action. No point was made upon the trial respecting
We think the judgment should be affirmed, with costs.
The Code, § 3339, says that there is only one form of civil action; that the distinction between actions at law and suits in equity has been abolished. Section 1207 says that where there is an answer the court may permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issue. Section 968 says that an action “for a nuisance” must be tried by a jury. Under these sections I do not see how a distinction as to the rule of damages can be made in two cases, based on the same facts, merely because in one the complaint demands an injunction and in the other it does not. The relief demanded does not necessarily characterize the action. Hale v. Bank, 49 N. Y. 626; Williams v. Slote, 70 N. Y. 601. In this present case the plaintiffs might have had an injunction, if the court in its discretion had granted it, and that, too, under section 1207, whether it had been demanded or not in the complaint. Still I understand the Henderson and Uline Cases to say that, notwithstanding section 3339, a distinction does prevail between “equitable suits” and “actions at law,” not merely as descriptive of two classes of rights, but as con
