Caleo v. Goldstein , 118 N.Y.S. 859 ( 1909 )

Rich, J.:

The learned justice at Special Term has held that if the cause of action stated in the complaint can be maintained in equity the alleged defect of misjoinder of causes of action is not substantial and presents no bar to maintaining the action. (61 Misc. Rep. 582.) I concur in this view, but he has reached the conclusion that the complaint did not state a cause of action for equitable relief. In this I think he was in error. If it should appear that a building has been erected upon the land of the plaintiffs, equitable interference to compel its removal by the person who wrongfully erected or maintains it is proper. Such removal necessarily imperils the remainder of the building, and the trespasser, not the injured party, ought to assume that risk. The primary object of the action is to compel the removal of the encroaching buildings, which involves, as an incident, the determination of the boundary lines of the respective parties. Equitable jurisdiction, being properly invoked upon the first branch of the case, will be retained and continued to settle all incidental issues, and the question of the boundaries is a proper incidental issue for equity jurisdiction. The complaint is not to be condemned because it does not point out the actual trespasser. That is made impossible because of the conflict of boundaries created by the defendants themselves, each of whom adopted a line as the proper division line between their land and that of the plaintiffs, and built accordingly. One or both are in error, the buildings of one or both are alleged to encroach upon the land of the plaintiffs, and the plaintiffs are entitled to relief against one or both of the defendants, who are interested and may possibly be affected by the determination. If it should be found that the buildings of both defendants encroach, the plaintiffs are entitled under the pleadings to relief against both. Equity permits all persons related to the subject-matter, who have a common interest in one or more branches of it, to be joined in an action when the subject-matter has become so involved that the rights of the parties are in doubt and it is difficult to determine who is and who is not liable, except upon a full hearing before the court, which can adjudicate the questions and settle the rights of all of the parties, and make its judgment, so full and comprehensive as to quiet the controversy in all of its aspects, protect those compelled to obey its decrees and prevent further litigation. (Board of Supervisors v. Deyoe, 77 N. Y. 219; Hilton Bridge Co. v. N. Y. C. & H. R. R. R. Co., 84 Hun, 225; Kellogg v. Siple, 11 App. Div. 458; Hall v. Gilman, No. 1, 77 id. 458; New York & N. H. R. R. Co. v. Schuyler, 17 N. Y. 592; Gavazzi v. Dryfoos, 47 Misc. Rep. 15.) The complaint states a good cause of action in equity, the interlocutory judgment must be reversed, with costs, the demurrer overruled, with'costs, with the right to the respondent to answer within twenty days.

Hirschberg, P. J., Jenks and Gaynor, JJ., concurred; Miller, J., dissented.

Interlocutory judgment re versed, with costs, and demurrer overruled, with costs, with the right to the respondent to answer within twenty days.