108 N.E. 80 | NY | 1915
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *565 We are unable to assent to the first two grounds of the decision of the learned Appellate Division. By not objecting the parties consented to try all of the issues at Trial Term. The only objection claimed by the corporation counsel to raise the question of the proper manner of trial of the issues was one taken to the admission of testimony to show the alleged mistake, but that objection was plainly insufficient to raise the point. Having consented to the manner of trial, the plaintiff should not thereafter have been heard to assert that a different method should have been pursued.
Moreover, we are of the opinion that it was within the power of the court at Trial Term to try and dispose of all the issues raised by the pleadings and to make a complete adjudication of the matters in controversy. It is quite common to speak of the "law" and "equity" sides of the Supreme Court, but in truth the Supreme Court is one court exercising jurisdiction at law and in equity. One of the main purposes of vesting the Supreme Court with such jurisdiction was to obviate the difficulty resulting from the necessity of trying part of a controversy in one court and part in another, and if a distinction is still to be maintained between the jurisdiction which the Supreme Court may exercise on its so-called law and equity sides, the former difficulties will be preserved in part. True, the Code of Civil Procedure provides that the mode of trial of an issue of fact arising upon a counterclaim is the same as if it arose in an action (Section 974), but it also provides that "an issue of fact triable by the court may be tried at a trial term or a special term of the supreme court as prescribed in the *568 general rules of practice." (Section 976.) We fail to perceive how it can make any difference as to the quality or measure of justice administered whether the judge is sitting in a Trial or a Special Term, in one court room or another. It is the Supreme Court which grants relief both at law and in equity, and the power of the court to try all of the issues between the parties at Trial Term and to grant both legal and equitable relief is in our opinion undoubted.
Whether the court had discretion to direct separate trials of the issues is an entirely different question. It may be that the trial court should have made findings to support its decision of the issues arising upon the counterclaim, but its failure to do that did not justify a reversal of the judgment by the Appellate Division and the decision of the issues the other way.
However, we think the Appellate Division was justified in directing final judgment for the reason that the defendants wholly failed to establish a case for reformation of the contract. The defendants knew that they owned the fee of the street to the width of fifty feet when they signed the application to the board of estimate and apportionment for permission to build a tunnel beneath and across the street, though their agent, who selected the form of application, was ignorant of that fact. The board of estimate granted the application and determined the compensation to be paid upon the basis of the superficial area of the tunnel to be constructed, but without considering at all the question of the ownership of the fee of the street. The defendants got precisely what they applied for — permission to build the tunnel across the entire width of the street. The evidence shows that in the construction of the tunnel, sewer, water and gas pipes and electric conduits were encountered which had to be shifted in various directions. The city was not obliged to grant the permission to construct a tunnel in the part of the street of which it did not own the fee even assuming *569 that the defendants had the right to so construct it without permission. The evidence does disclose that Abraham Straus and Loeser received permission to construct tunnels under Livingston street connecting their respective properties, and that the charge to each was based on the superficial area of that part of the tunnel in the strip of which the city owned the fee, but in those cases the application was only for permission to construct in that part of the street. It may be assumed that if the defendants had made such an application it would have been granted on the same terms and that they would have constructed the tunnel precisely as they did and been required to pay no more than their neighbors, but for that difference in treatment they must look to the board of estimate and apportionment for redress. A court of equity cannot remake the contract simply because the defendants made a mistake in asking for more than they needed. The express permission to construct a tunnel in the part of the street of which the defendants owned the fee furnished at least some consideration for so much of the charge as was based on that part of the street. The evidence failed to show a mistake of fact on the part of either of the parties, but at the most a mistake of the defendants in supposing that they needed a permit for the part of the street of which they owned the fee. We do not decide even that they were wrong in that assumption.
The judgment should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., CHASE, COLLIN, HOGAN and CARDOZO, JJ., concur; HISCOCK, J., concurs in result.
Judgment affirmed. *570
