Heughes v. Galusha Stove Co.

106 N.Y.S. 606 | N.Y. App. Div. | 1907

Williams, J.:

The order should be reversed, with ten dollars costs and disbursements.

The action, as shown by the complaint, was for nuisance, under section 1660 of the Code of Civil Procedure. Final judgment was demanded in accordance with section 1662 for damages and for the removal of the nuisance. No equitable relief was demanded. In such an action the parties have a right to a trial by jury, under subdivision 2 of section 968 of the Code of Civil Procedure. It is said, however, that while an action for nuisance, demanding damages and the removal of the nuisance, is triable by a jury as matter of right, the prayer for relief should not ask that the defendant be directed to remove the nuisance; and when it does so it asks for equitable relief, and the right to trial by jury does not exist. The argument is that under the common-law form of judgment, “ that the nuisance be abated,” the writ of nuisance would be issued to the sheriff and he would abate it; while under the demand in question the defendant would be required to abate it, and could only be proceeded against for failure to do so as for contempt. The writ of nuisance was abolished, however, by the. Code of Procedure (§ 453), and now the only way to enforce the judgment in a nuisance case, rendered under section 1662 of the Code of Civil Procedure, is by contempt proceedings against defendant. No execution is provided for the removal of the nuisance by section 1240, but under section 1241 the judgment is required to be served on the defendant; and if there is refusal by the defendant to comply therewith, proceedings as for contempt may be maintained. Where the judgment determines that a nuisance is maintained by a defendant, and directs the removal thereof, under section 1662 of the Code of Civil Procedure, we think it is equivalent to saying it should-be removed by the defendant. There seem to be no cases where this precise question has been considered, but we think the reasonable and proper rule is as we have stated it; and in this view no equitable relief is prayed for in the complaint. The case is one for nuisance alone, and the right of trial by jury exists.

All concurred, except Robson, J., who dissented.

Order reversed, with ten dollars costs and disbursements.