Before, as well as since the writ of nuisance was by the Code abolished, the right existed to maintain an action for the removal of a nuisance, which, when brought, was exclusively of equitable cognizance, properly triable at Special Term and not by jury, unless the court in its discretion should otherwise order. An action at common-law might also have been maintained, for the recovery of the damages occasioned by the nuisance, which was exclusively of common-law jurisdiction, and triable at circuit and always by a jury, unless the parties should otherwise agree. The only change wrought by the Code was the substitution of an ordinary action for "both" the removal of the nuisance and the recovery of the damages occasioned by it, instead of the writ of nuisance, and that is this case. This action is for both, in which, as Blackstone has it, judgment is demanded against the defendant "of two things:" 1st. That the defendant take away or lower his dam, so as to cease obstructing the stream to the injury of the plaintiff. 2d. That the defendant pay to the plaintiff all the damages she has suffered from the obstruction. The defendant, having taken issue upon the allegations in the complaint upon which the demand for judgment *Page 555 was founded, and relying upon a provision of the Constitution of this State, that the trial by jury, in all cases in which it had been theretofore used, should remain inviolate forever. Art. 1, § 2, Const., 1846, demanded that the issues be tried by jury, and his demand was overruled. In this the court erred. The rule stated in Davis v. Morris (36 N.Y., 569, 572-3), is that when the facts stated, arising (as in this case) out of the same transaction, entitle a party to both kinds of relief, the right founded upon the common-law must be tried by jury; and when at the Special Term such trial is demanded, the judge must determine whether any of the grounds, upon which the recovery is sought, were such as, at the adoption of the Constitution, were redressed solely by action at law, and if so, direct that the cause be tried by jury. But, whatever may be said or decided in regard to the trial of other actions, in which two causes of action, one exclusively of legal, and another exclusively of equitable cognizance, arising out of the same transaction, are united, this action should, for an independent reason, have been tried by jury, and that is that the action, when brought for the double object of removing the nuisance and recovering the damages occasioned by it, was always tried by jury. The ancient remedy was by an assize of nuisance, commanding the sheriff to summon a jury and view the premises; and if the jury found for the plaintiff, he was entitled to judgment "of two things:" 1st, to have the nuisance abated; and 2d, to recover damages. (3 Blackstone Com., 220.) That remedy, subject to certain statutory provisions, was continued in this State, with a provision that, in all cases, "the jury that inquired of the nuisance was required to assess the damages occasioned thereby," (2 R.S., Edmunds' ed., 556, 557); and the execution which followed the judgment directed the sheriff to remove the nuisance and collect the damages and costs. (2 Burrill Pr., 262.) Thus it will be seen that, in this single action, brought for the double purpose of abating a nuisance and the recovery of damages occasioned by it, by whatever name the remedy may have been styled, *Page 556 a case is presented in which a trial by jury has been heretofore used; and hence, that an error was committed in refusing the defendant's demand and proceeding to judgment against him. The judgments of the Special and General Terms must be reversed, and a new trial ordered.

For reversal, GRAY and LEONARD, CC., and LOTT, Ch. C. For affirmance, HUNT and EARL, CC.

Judgment reversed and new trial ordered, costs to abide the event. *Page 557