222 A.D. 762 | N.Y. App. Div. | 1927
Judgment reversed upon the law and new trial granted, costs to appellants to abide the event. The action was tried as one at law. There is no decision in the record. If it be regarded as an equitable action, the judgment must be reversed because in form it is upon the merits, and this could not be without a decision. Treating the action as one at law, we are of opinion that it was for the jury to say whether the individual defendants acted in good faith and to pass upon the measurable adequacy of the appropriation. A general verdict of six cents for the plaintiffs would import that the appropriation was inadequate and that the seizure of the land was illegal. Young, Hagarty, Seeger and Carswell, JJ., concur; Lazansky, P. J., dissents upon the ground that plaintiffs’ counsel plainly indicated that the only relief sought was damages, and made no effort whatsoever to prove any damages. Equity should not be required to bother with what really was an academic question.
