Tucker v. Edison Electric Illuminating Co.

Laughlin, J.: . This is an action to enjoin a nuisance caused by an electric light plant. The court found that at the time of the commencement of the action a nuisance existed which entitled the plaintiff to injunctive relief, but that pending the action and before the trial thereof the defendant had so far abated the nuisance that an injunction should not be issued. The court, therefore, retained jurisdiction and assessed the plaintiff’s damages. The damages awarded are not excessive, and no error was committed upon the trial.which requires a reversal, provided the court had jurisdiction to retain the action and award damages. When the' case was moved for trial, counsel for defendant requested that the case be stricken from the Special Term calendar and sen-t to the Trial Term calendar, upon the ground that the defendant was entitled to a jury trial ás matter of right. The motion was denied and the defendant excepted. At that time it did not appear that the plaintiff .would not be entitled to an injunction. The plaintiff insisted that he would be able to establish a case for- an injunction and endeavored to do so. The facts were not conceded and a trial of the case became necessary, in order to determine whether injunctive relief should be awarded. In this respect the case differs from McNulty v. Mt. Morris Electric Light Co. (172 N. Y. 410), where, at the commencement of the trial at Special Term, when a jury trial was demanded, it appeared that the plaintiff, who, as a tenant, brought the action for an injunction and for damages, had thereafter vacated the premises, owing to the expiration of his lease, and would not be entitled to injunctive .relief. If the defendant’s theory should prevail, two trials of this action would be necessary, the one before the Special Term to determine whether the nuisance had sufficiently abated to justify the court in refusing an injunction and the other before á jury tp determine the amount of damages caused during the period that the defendant violated the property rights of the plaintiff. If there be anything left to the doctrine frequently announced by the decisions (Van Allen v. N. Y. E. R. R. Co., 144 N. Y. 174, and cases cited; Koehler v. N. Y. El. R. R. Co., 159 id. 218, and cases cited, and other decisions announcing and applying the same principle) that where equity once acquires jurisdiction it will retain jurisdiction, and'even though the [409] circumstances have so changed during the pendency of the action that at the time of the trial the plaintiff is not entitled to injunctive relief, will assess his damages, then this judgment should be affirmed. I am of the opinion that there is sufficient substance of the doctrine left to justify and require an affirmance. It follows that the judgment should be affirmed, with costs. Patterson and O’Brien, J J., concurred ; Van Brunt, P. J., and McLaughlin, J., dissented.