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of ejectment to award the plaintiff all the relief to which it is entitled. It can settle the title to the piece of land in dispute and if a conclusion be reached that the plaintiff is the owner and entitled to possession, it can, as incidental to such judgment, award such damages against defendant as will compensate the plaintiff for being kept out of possession, as well as for the expenses in removing encroachments upon such property and restoring it to such condition as it would have been if defendant had not wrongfully taken possession thereof.

The order appealed from, therefore, should be reversed and the motion to strike the cause from the Special Term calendar granted, with costs in all courts. The question certified is answered in the affirmative.

CARDOZO, J. (dissenting). I am unable to concur in the opinion of the court.

1. This is not an action of ejectment. It is an action in equity to enjoin the obstruction of a highway. Ejectment furnishes some remedy, but not one complete and adequate. In an action at law, execution must direct the sheriff to deliver the possession of the property to the party thereto entitled (Code Civ. Pro. § 1373; Civ. Pr. Act, § 644). "The sheriff might not regard it as his duty to deliver possession by taking down the wall, which would burden him with the risk of injury to other portions of defendant's building" (Baron v. Korn, 127 N. Y. 224, 228). Even if he stood ready to assume the risk, he would expect the plaintiff to assume the cost. "In equity, the obligation to remove can be placed directly on the party who caused the wall to be erected" (Baron v. Korn, supra). An owner is entitled to the remedy that will place the risk and the cost upon the shoulders of the wrongdoer. We have so held in this court. (Baron v. Korn, supra; Hahl v. Sugo, 169 N. Y. 109, 116; cf. Village of Oxford v. Willoughby, 181 N. Y. 155; City of N. Y. v. Rice, 198 N. Y. 124). There are like decisions elsewhere (Harrington v. McCarthy, 169 Mass. 492, 494; Lynch v. Union Institution for Savings, 158 Mass. 394; 159 id. 306; 5 Pomeroy Eq. Jurisprudence and Equitable Remedies, §§ 4359, 4360).

2. Equitable remedies being necessary for the attainment of complete relief, there is no rule that a court of equity must wait until the suitor's title to the land has been first made out at law. Such a rule there may once have been. It may still prevail in other states. In this state it has been long abandoned (Broistedt v. South Side R. R. Co. of L. I., 55 N. Y. 220; Lacustrine Fertilizer Co. v. Lake Guano & F. Co., 82 N. Y. 476, 486; West Point Iron Co. v. Reymert, 45 N. Y. 703; Olmsted v. Loomis, 9 N. Y. 423, 432; Baron v. Korn, supra; Hahl v. Sugo, 169 N. Y. at pp. 116, 117; Hinckel v. Stevens, 17 App. Div. 279, 281). Whatever vestige of it survives, is at most a guide to discretion, not a restriction upon power (Wheelock v. Noonan, 108

N. Y. 179, 187; Baron v. Korn, supra). Our ruling in Hahl v. Sugo (supra) suggests that even the vestige is now extinct. We have left far in the distance the wasteful duplication of remedies and trials. We shall set the clock back many years if we return to it to-day.

The order should be affirmed, with costs, and the question certified answered in the negative.

All concur with MCLAUGHLIN, J., except CARDOZO, POUND and CRANE, JJ., who dissent and concur in opinion by CARDOZO, J. Orders reversed, etc.1

DI MENNA v. COOPER & EVANS CO.
COURT OF APPEALS, NEW YORK. 1917.
220 New York 391.

CARDOZO, J. The action is brought to foreclose a mechanic's lien. The plaintiff, a sub-contractor, furnished labor and materials to the defendant Cooper & Evans Company, which had a contract with the city of New York for a public improvement. The complaint alleges that the defendant undertook to make advances to the plaintiff during the progress of the work; that it kept its promise for a time; but that in August, 1910, it refused to make further advances, discharged the plaintiff and terminated the contract. The value of the labor and material supplied at that time, in excess of payments already received, is placed at $3,650.43. Judgment is demanded that the plaintiff be declared to have a lien upon the moneys due to the contractor from the city of New York; that the lien be enforced, and "that the plaintiff have personal judgment against the defendant Cooper & Evans Company for the amount of his claim, together with interest and costs." The city of New York, which was joined as a defendant, served an answer which put in issue the existence

1 See Clark, Code Pleading (1928) § 52. Compare Pugh v. Heath, 7 App. Cas. 235 (H. L. 1882), an action to recover the possession of land not involving any question of right to trial by jury, where Lord Blackburn said (p. 239) : "Some twenty years ago there might have been some difficulty, in this case, in saying whether the proper form of remedy was by ejectment at law or by a suit in Chancery; but now it is quite immaterial which of the two it is, if it can be shewn that there is a remedy, and I perfectly concur in the judgment, for the reasons which have been given by the noble and learned Lord now on the woolsack, that there is a remedy in one way or the other, and it does not matter which." See also the remarks of Scrutton, L. J., in Oakley v. Lyster, [1931] 1 K. B. 148, 151 (C. A.).

Compare Brooks v. Wheeler, 243 N. Y. 28 (1926).

As to whether the holder of an equitable title may maintain a code action to recover the possession of land, see Hutchins, "Equitable Ejectment," 26 Col. L. Rev. 436 (1926); Clark, Code Pleading (1928) § 26.

of the lien. The contractor's answer denied the material allegations of the complaint, and set up a counterclaim in which it stated that the plaintiff had wrongfully abandoned the contract to the defendant's damage in the sum of $11,671:41. To this counterclaim the plaintiff made a reply which was in substance a general denial.

Upon these pleadings the plaintiff moved that issues be stated for trial by jury. The Special Term denied the motion, but the Appellate Division reversed (155 App. Div. 501). Its order directed that the following issues be tried by jury:

"1. Is the plaintiff entitled to a money judgment against the defendant, Cooper & Evans Company, and if so, for how much?

"2. Is the defendant Cooper & Evans Company entitled to a money judgment against the plaintiff, and if so, for how much?"

These issues were brought on for trial before Judge Newburger and a jury. A special verdict was rendered by which it was found that the plaintiff was entitled to recover from Cooper & Evans Company $4,137.97, and that Cooper & Evans Company was not entitled to recover anything from the plaintiff. A motion to set aside the verdict was denied.

The plaintiff then brought on the remaining issues for trial at Special Term. He took the position that the jury's verdict was conclusive; the defendant took the position that it was merely advisory.' The court accepted the former view. Upon proof of the verdict the conclusion was announced that the plaintiff must prevail. The court was asked by the contractor's counsel to determine the issues for itself, irrespective of the verdict. It refused to do so. It ruled, however, that there remained open the question of the existence of the lien. After that ruling the city of New York proved that the notice of lien had been filed too late. This made it invalid, and so the court held. Equitable relief was accordingly refused, but the plaintiff was given a personal judgment against the contractor for the sum found due by the jury.

In determining the force to be attributed to the jury's verdict, the complaint and the counterclaim are to be distinguished.

We are unwilling to hold that the plaintiff's cause of action was triable by a jury as of right upon the plaintiff's demand. An action to foreclose a lien is one of equitable cognizance (Kenney v. Apgar, 93 N. Y. 539, 550; Schillinger F. P. Cement A. Co. v. Arnott, 152 N. Y. 584.) Until the enactment of recent statutes the rule was that if the plaintiff did not prove a lien, equity was without power to give judgment for the moneys due to him (Burroughs v. Tostevan, 75 N. Y. 567; Weyer v. Beach, 79 N. Y. 409). That rule has now been changed (Lien Law, § 54, formerly Code Civ. Pro. § 3412; Bradley & Currier Co. v. Pacheteau, 175 N. Y. 492; Abbott v. Easton, 195 N. Y. 372). The action may be retained, and common-law relief awarded. We do not doubt that a defendant by timely demand may preserve his right, in the event of failure of the lien, to trial

by jury of the other issues (Schwartz v. Klar, 144 App. Div. 37, 42; Hawkins v. Mapes-Reeve Const. Co., 82 App. Div. 72; 178 N. Y. 236; Milliken Bros., Inc., v. City of N. Y., 201 N. Y. 65; Miller v. Ed. El. Ill. Co., 184 N. Y. 17, 27). The fact that the plaintiff has combined with a prayer for equitable relief an alternative claim for a money judgment, cannot deprive the defendant of the jury trial assured to him by the Constitution. But a different question is presented where it is the plaintiff who seeks a jury. The form of action in such a case is that of his own selection. The law does not require him to demand a personal judgment in the event of the failure of his lien. "It is intended to afford him a privilege - not to subject him to compulsion" (Koeppel v. Macbeth, 97 App. Div. 299, 301). If he takes advantage of that privilege, he elects that the whole controversy, in all its aspects, may be determined by the court. To hold otherwise would do violence to the plain purpose of the statute. One cannot be heard to urge as a breach of one's consitutional right the concession of a remedy which one has one's self demanded. The rule is fundamental that where a plaintiff seeks legal and equitable relief in respect of the same wrong, his right to trial by jury is lost. If any right remains, it is the right of the defendant.1 . . There is a dictum in the Hawkins case which suggests that either party may be entitled to have the issues framed (82 App. Div. 72, 78). No such question, however, was involved, for the claim to trial by jury was there made by the defendant. When the case came here, we were careful to state that we placed our affirmance on other grounds (178 N. Y. at p. 241; Milliken Bros., Inc., v. City of N. Y.,.supra). The question, therefore, is still an open one. We think our conclusion ought to be that as to the plaintiff's cause of action the jury's verdict was advisory (Acker v. Leland, 109 N. Y. 5; Hammond v. Morgan, 101 N. Y. 179; Learned v. Tillotson, 97 N. Y. 1; McClave v. Gibb, 157 N. Y. 413).

A different question arises when we come to the counterclaim. This was more than a counterclaim in name only (Bennett v. Edison El. Ill. Co., 164 N. Y. 131). It was an independent cause of action, which, if sustained, would have given the defendant a judgment for upwards of $11,000. It was, therefore, triable by jury as of right (Code Civ. Pro. §§ 970, 974; Deeves v. Met. Realty Co., 6 Misc. Rep. 91; affd. on opinion below, 141 N. Y. 587; Cook v. Jenkins, 79 N. Y. 575). As to that branch of the case the verdict was conclusive. It was conclusive that the plaintiff had not abandoned the contract without cause, and that the defendant was at fault in refusing to permit him to go on. All that was left for the plaintiff to prove was the value of the work and the order for some extra items.

1 Numerous citations are omitted.

In these circumstances the defendant's motion that the court determine the issues irrespective of the jury's verdict must be held to be too general to sustain the claim of error.1

HISCOCK, Ch. J., CHASE, COLLIN, HOGAN, MCLAUGHLIN and CRANE, JJ., concur.

Judgment accordingly.2

BRUCKMAN v. HOLLZER.

CIRCUIT COURT OF APPEALS, NINTH CIRCUIT. 1946.

152 Federal (2d series) 730.

Before DENMAN, BONE, and ORR, Circuit Judges.

DENMAN, Circuit Judge.3

Petitioners, defendants below, hereinafter called defendants, seek mandamus to compel the respondent judge to strike the demand for a jury trial upon and to hear and determine in equity the claim of the complaint of Harold Lloyd Corporation, plaintiff below, for money damages to it for an infringement by the three defendants of plaintiff's copyright of its photoplay The Freshman. Defendants contend in support of our power to issue the writ that the District Court's order for trial as at common law by jury is beyond its jurisdiction and that by assuming it the court prevents an appeal from any full consideration by the court on the equitable issues..

The complaint, complying with Rule 10 (b) of the Federal Rules of Civil Procedure, 28 U. S. C. A. following section 723c, sets forth three sets of transactions upon each of which plaintiff has a claim for relief (a) that the three defendants have infringed and that the infringement has destroyed the value of plaintiff's photoplay and injured plaintiff in the amount of $500,000 general and $500,000 special damages, for which it claims money judgment; (b) that defendant Universal Pictures Corporation has appropriated the copyrighted matter and has reproduced it at a profit, for which plaintiff claims an accounting as if defendant were a trustee for plaintiff, and (c) that the latter defendant has infringed and intends to continue to infringe, for which plaintiff claims that defendant should be enjoined from so continuing in the wrongdoing. The destruction of the prints

1 The remainder of the opinion, discussing this question and holding that the judgment should be modified in a minor respect, is omitted.

2 Compare Gill v. Pelkey, 54 Ohio St. 348, 357-361 (1896), where the action was to recover possession of land and the defendant set up an equitable counterclaim. seeking relief against mistake. See Clark, Code Pleading (1928) § 16. 3 Footnotes by the court omitted except as indicated.

4 A footnote by the court gives the text of Rule 10 (b), p. 861, infra.

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