Parker v. . Laney

Grover, J. Section 253 of the Code provides that actions for the recovery of money only or of specific real or personal property, or for divorce upon the ground of adultery, must be tried by jury, unless waived, as provided in section 266, or a reference be ordered. Section 254 provides that every other issue is triable by the court, which, however, may order the whole issue or any specific question of fact involved therein to be tried by a jury, or may refer it, etc. The latter section must, of course, so far as it provides for trial by the court, be controlled by section 2, article 1, of the Constitution, which provides that the trial by jury, in all cases in which it had been theretofore used, should remain inviolate forever; but this provision has no effect upon the power conferred to order a jury trial in all cases embraced in the section. The order for such trial was, therefore, valid, irrespective of the question whether the issues might have been tried by the court or not. The relief demanded was, in addition to a recovery of money, to restrain the defendants from the continuance of the acts complained of. This might all be obtained in one action. (Corning v. Troy Iron and Nail Factory, 40 N. Y., 191.) The plaintiff did not waive or at all affect his right to this relief by proceeding to a jury trial under the order. That order embraced all the issues in the cause, and all must be so *472 tried while the order remained in force. It follows that, while it so remained, it was irregular for the trial judge to find additional facts upon which, together with the verdict, judgment should be given. He had no authority to make any such finding. Had the order directed the trial of- some specific question of fact only by jury, such a proceeding would have been proper. It follows that if the verdict did not determine all the material issues of fa'ct, so as to enable the court to give judgment upon the entire case and as to all the relief demanded, it was defective, and should have been set aside as. such and a new trial ordered. True the plaintiff might, if he chose, discontinue the action as to the additional relief, and enter judgment for the recovery of the money found by the verdict, but the defendants had no such right. It would have been improper for the clerk to enter judgment upon the verdict as in an action for the recovery of money only. It was for the court to make an order specifying the judgment to be given at the time the verdict was rendered, or upon further consideration, pursuant to section 264 of the Code. This brings us to the question whether the verdict did determine all the issues so as to enable the court to give judgment upon the entire case. If it did it should stand, and such judgment be given. If not, as we have seen, it should have been set aside as defective and another trial had. The issues were whether the defendants had done the acts charged in the complaint, and whether such acts produced the injury to the plaintiff’s house complained of. The verdict necessarily finds that the defendants had committed some or all the acts charged — presumptively all — and that such acts did produce the injurious results to the plaintiff’s house as charged. It therefore authorized a judgment restraining such acts. Such judgment was, therefore, properly ordered by the court. This made the costs discretionary. (Code, § 306.) In the exercise of its discretion the court gave costs to the plaintiff. The judgment, being authorized by the verdict should stand as final between the parties. *473 The order of the General Term setting this aside and directing a trial of the issues other than that as to damages, should be reversed, and the order of the Special Term, so far as it denied the defendants’ motion to set aside the judgment, affirmed. No costs of appeal to this court should be given to either party. All concur, except Church, Ch. J., and Folger, J., not voting; Allen, J., concurring in result. Ordered accordingly.