235 A.D. 18 | N.Y. App. Div. | 1932
The principal question here involved is whether the plaintiff waived his right to a jury trial and consented to a trial by the court without a jury.
Two actions were brought against different defendants involving nuisance. In one action injunctive relief was demanded with incidental damages. By bringing the action in this form, plaintiff thereby submitted to have the issues tried by the court alone, or with the aid of the jury as the court in its discretion might determine according to the practice in equity cases. (Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y. 319; Miller v. Edison El. Ill. Co., 184 id. 17; DiMenna v. Cooper & Evans Co., 220 id. 391.) The
If the trial court had jurisdiction to determine the case without the aid of a jury, then there was sufficient evidence, though conflicting, to support the decisions and judgments rendered.
The judgments should be affirmed, with costs in one action.
. All concur, except Hill, J., who dissents and votes for reversal and a new trial on the ground that a trial by jury was improperly denied (Civ. Prac. Act, §§ 425, 426; City of Syracuse v. Hogan, 234 N. Y. 457) and that the right had not been waived (Alsens A. P. C. Works v. Degnon Cont. Co., 222 N. Y. 34; Newburger v. Lubell, 257 id. 383, 387); and McNamee, J.,"who dissents and votes for a reversal of the judgments and for new trials, on the grounds that the common-law action and the equity action are founded on different sets of facts, are against different defendants, give rise to different forms of relief, and the plaintiff did not waive the right to a jury trial in the common-law action (Civ. Prac. Act, §§ 425, 426; Alsens A. P. C. Works v. Degnon Cont. Co., 222 N. Y. 34, 37;
Judgments affirmed, with costs in one action.