14 N.Y.S. 619 | N.Y. Sup. Ct. | 1891
This action was brought to recover damages, past and future, arising from the erection of the railroad in front of the premises 368 Ninth avenue. The plaintiff purchased this property On the 2d of July, 1888. She is the wife of Louis Sommer, one of the four heirs at law of Philip Sommer, deceased, who died in 1874 intestate, seised in fee of the premises, and leaving him surviving four children and a widow, since deceased. The children continued to hold the title to and remained in possession of the premises until the 2d of July, 1888, when the property was conveyed to one Charles A. Flammer, who on the same day conveyed the premises to the plaintiff. This action was begun on the 12th of February, 1889. On the 6th of February, 1889, by an assignment in writing, the children of Philip Sommer, the tenants in common, sold and transferred to the plaintiff all their right, title, and interest in and to any damage arising by reason of the maintenance and operation by the defendants of the elevated railroad and structure in front of said premises. The plaintiff asks for an injuction, in case of non-payment of the damages to the fee, and incidental thereto, for the past damages, accruing as soon as she acquired the title to the property, and also for the damages which had accrued to her predecessors in title, and which had been assigned to her. The answer alleged, among other things, that for the injuries or cause of action alleged in the complaint, the plaintiff had a complete and adequate remedy at law. When the case came on for trial, the counsel moved, among other things, that the issue of past damages, under the assignment, be sent “to the circuit of this court,” (the counsel evidently not being aware that the circuit court is not a part of the supreme court, but an independent tribunal, for trial by jury,) upon the ground that the defendant was entitled to such form of trial as a matter of right. This motion was denied, and in such denial we think error was committed.
The action for past damages was strictly an action at law. Such right to claim damages had been severed from the realty, and the plaintiff had pro
The point that defendants were entitled to a jury trial as to the whole cause of action, because the complaint alleged a nuisance, is not well taken. The allegations in the complaint are just as consistent with the action of trespass as with the action for a nuisance. There is nothing which stamps the complaint with the character of an action for a nuisance, such as. there was in the-case of Libmann v. Railroad Co., 13 . Y. Supp. 378; and, if there was any doubt upon that proposition, the defendants should have called upon the plaintiff to declare, before, proceeding with the trial, whether he claimed equitable relief because of a continuing trespass or because of a nuisance. Under such circumstances, if the plaintiff bad claimed damages upon the ground of a nuisance, then clearly the defendants would have been entitled to a jury trial, but such did not appear. We think that the judgment must be reversed, and a new trial ordered, with costs to appellants to abide event.