Remsen v. New York, Brooklyn & Manhattan Beach Railway Co. , 111 A.D. 413 ( 1906 )

Gaynor, J.:

This verbose complaint alleges,nothing bat a cause of action for-the recovery of the possession of real property.- That the defendant is a steam .railroad company, and has tracks on it and runs trains of cars, over it, does not make the suit one in -equity. If the- plaintiff recovers possession, and the defendant leaves its. ties and rails, after it, that presents no casé calling for the assistance of a. court of equity. The plaintiff’s own hands will suffice. And it is to be presumed that when the plaintiff gets into possession b.y a common-law judgment the defendant will not run a train of cars over him or his property before he can pull up the ties and rails. If the defendant should be guilty of continuous trespass1 upon his, property .after he is given possession, which cannot b„e presumed, equity will give protection then. • . “

And if there were some incidental equitable relief needed to supplement a common-law judgment for the plaintiff, that could not deprive the defendant, of its right to trial by jury. The action would still be ejectment, and such incidental relief could be given by the: Court at the same time (Davis v. Morris, 36 N. Y. 569). The case of Hahl v. Sugo (169 N. Y. 109) is not to the contrary; it is nothing but an illustration of the old rule against the splitting of causes of action (Bendernagle v. Cocks, 19 Wend. 207). It does not. decide anything about the right tó a jury trial. It only holds that the plaintiff there had only one cause of action, i. e., a common-law cause of action of ejectment in which some incidental equitable relief might be appropriate under our practice system, and not that he had two causes of action, i. e., one at law and; the other in equity. If it had held the latter, it could not have held that the - plaintiff should have united the two causes in one action,’ Bo one ■ is obliged to do that. Thé rule "is only against splitting one cause of action. 1

The order should be affirmed.

. Woodward and J-enks, JJ., concurred; Hirsghberg, B. J., concurred in result; Hooker, J., read for reversal;