Jacob v. Schiff

149 N.Y.S. 273 | N.Y. Sup. Ct. | 1913

BIJUR, J.

Plaintiff sues under section 51 of the Civil Rights Law because of the unauthorized publication of his picture, which, he alleges, continued up to the beginning of the action. He prays for injunctive relief and money damages. Issue was joined about a year ago by service of the answer, which, for the purposes of this motion, may be regarded as a general denial. The case was noticed for trial at Special Term. Plaintiff now moves that it be sent to Trial Term, Part II, for a jury trial; the motion being made upon an affidavit which alleges that the publication of the picture has been discontinued since action brought.

[1] Defendant insists that the entire cause be tried at the Equity Term. There are many reasons why the motion must be denied. In the first place Trial Term, Part II, is, so far as the present controversy is concerned, the place of trial only for framed or settled issues; therefore the case as a whole cannot be sent to that part.

[2] But a more serious objection is the consideration that the issues raised by the prayer for injunctive relief have not been disposed of. The mere fact that plaintiff now indicates that he does not care to have an injunction issue is not equivalent to an amendment of his complaint under which a right to such injunction is set forth. See Miller v. Edison E. & I. Co., 184 N. Y. 17, 20, dissenting opinion of Gray, J., pages 26 and 27, 76 N. E. 734, 736-738, 3 L. R. A. (N. S.) 1060, 6 Ann. Gas. 146, which on this point is concurred in by the entire court; also Watson v. Man. Ry., 53 N. Y. Super. Ct. 137. The same reason prevents the application of the principle that where a complaint sets out a cause of action in equity, with" a prayer for incidental relief, which, standing by itself, would be the subject of cognizance at law, and the ground for awarding equitable relief has been completely removed or has disappeared, the issues remaining (if the facts pleaded sufficiently set out a cause of action at law) should be sent to Trial Term for trial by a jury, unless the party making, such application has by unwarranted delay waived that right. See McNulty v. Mt. Morris E. I. Co., 172 N. Y. 410, 411-414, 65 N. E. 196; Davison v. Associates, etc., 71 N. Y. 333, 340; Pegram v. Elevated R. R., 147 N. Y. 135, 148, 41 N. E. 424; Koehler v. N. Y. Elevated Ry., 159 N. Y. 218, 224, 53 N. E. 1114. There is nothing adverse to this conclusion in Ransome C. M. Co. v. McDonald et al., 207 N. Y. 383, 101 N. E. 175, cited by plaintiff, because it does there appear that the ground for equitable relief, namely, the injunction, had completely abated, leaving only an action for rental of apparatus to be tried.

[3] I have, up to this point, regarded the complaint as setting out but a single cause of action, which seems to be the interpretation suggested in Riddle v. MacFadden, 201 N. Y. 215, 220, 94 N. E. 644, namely, a cause of action arising out of a personal injury sought to be enforced by plaintiff by a suit in equity, with a prayer for monetary damages as incidental to the main relief. In such a case the plaintiff cannot claim a jury trial as a matter of right, which is, of course, the claim made on this motion. See Cogswell v. N. Y., etc., R. R., 105 N. Y. 319, 11 N. E. 518; s. c. below, 54 N. Y. Super. Ct. 92; Lynch v. M. E. Ry., 129 N. Y. 274, 29 N. E. 315, 15 L. R. A. 287, 26 Am. St. Rep. 523; Shepard v. M. E. Ry., 131 N. Y. 215, 222, 30 N. E. 187; also McNulty, Pegram, and Koehler Cases, supra. It is true that in a number of actions recently brought under this section of the Civil Rights Law there has been what was called “an assessment of damages” by a jury. -To this proceeding there seems to have been no objection taken. It may also be noted that in each of these cases such “assessment” was had after an interlocutory judgment at Special Term decreeing the issuance of an injunction, and remitting the question of damages to a jury. Riddle v. MacFadden, 201 N. Y. 215, 216, 94 N. E. 644; Binns v. Vitagraph Co., 71 Misc. Rep. 203, 130 N. Y. Supp. 876, affirmed 210 N. Y. 51, 103 N. E. 1108; Rhodes v. Sperry Co., 120 App. Div. 467, 468, 104 N. Y. Supp. 1102.

[4] Should it be urged that the provision in the statute for recovering exemplary damages indicates plainly an intention that the plaintiff be accorded a jury trial, it may be said that the whole statute undoubtedly was passed with a view of affording to a plaintiff a right to a jury trial on all the relevant issues, if he elects to pursue his remedy at law; but the bringing of the suit in equity, with reliance upon a recovery for damages as incidental thereto, is either a waiver of the right to a jury trial, or, perhaps, more strictly speaking, the abandonment of an intention to .seek that mode of trial. See. Cogswell Case, supra. Indeed, it has been held, in other jurisdictions, that such a cause is regarded as a.waiver of the right to exemplary damages. Karns v. Allen, 135 Wis. 48, 58, 115 N. W. 357, 15 Ann. Cas. 543, 547, and cases there-cited.

[5] There remains to be considered another possible, though, as I regard it, incorrect, hypothesis, namely, that the complaint sets out two causes of action — one sounding in equity, and the other at law, which, pursuant to section 484, Code Civ. Proc., might be joined in one complaint, because arising out of “the same transaction.” See intimation to that effect in Riddle v. McFadden, 116 App. Div. 353, 355, 101 N. Y. Supp. 606. Upon that theory it is clear that, the action being one other than those enumerated in section 968 of the Code, the issues to be tried by the jury would have to be framed or settled pursuant to section 970, as pointed out in an analogous case. Mackellar v. Rogers, 109 N. Y. 468, 17 N. E. 350. However, if the action be thus regarded, Rule 31 of the General Rules of Practice would apply, and as no application to have the issues settled has been made within 20 days after issues joined, the right to a jury trial would be waived. The new and more comprehensive form of this rule was adopted in 1910 (effective September 1st). It disposes of distinctions which had been made in respect to, and of doubts entertained concerning, its application in its previous form. See Conderman v. Conderman, 44 Hun, 181; Ulbricht v. Ulbricht, 89 Hun, 479, 35 N. Y. Supp. 324; Herb v. Met. Hospital, 80 App. Div. 145, 152, 80 N. Y. Supp. 552; Wilcox v. Wilcox, 116 App. Div. 423, 101 N. Y. Supp. 828; Tietzel v. Tietzel, 122 App. Div. 873, 107 N. Y. Supp. 878.

Motion denied.