The plaintiff brought this action for an injunction and damages against the defendant, The Mount Morris Electric Light Company. The plaintiff was the tenant of No. 525 Greenwich street, in the city of New York, and the defendant's plant was adjacent thereto.
The complaint alleges, in substance, that the defendant so *Page 417 negligently constructed and conducted the property and operated the machinery therein as to discharge upon the premises of the plaintiff great quantities of soot, cinders, ashes and noisome gases, unpleasant odors, water and steam; also causing incessant noises and very great jar and vibration, etc., affecting the health and peaceable enjoyment of the occupants.
At the time this action was begun the plaintiff was in occupancy of the premises under his lease, but when the trial commenced his lease had expired and he had moved out.
Prior to the trial the defendant made a motion for leave to serve an amended and supplemental answer, which was granted. This answer was duly served, setting up the expiration of the lease and the vacation of the premises.
The cause coming on for trial at Special Term, on the equity side of the court, the defendant moved that it be stricken from the calendar, upon the ground that the issue remaining could not be tried; that the plaintiff asks for an injunction; that inasmuch as he is not now in possession of the property he is not entitled to an injunction; that the action is, therefore, a common-law action for damages and not an action for an injunction, and not an action over which equity has any jurisdiction.
The trial judge denied this motion, and after the introduction of evidence by both parties, rendered judgment in favor of the defendant, to the effect that the plaintiff having removed from the premises prior to the trial is not entitled to an injunction, but that the court could, notwithstanding, retain jurisdiction of the action for the purpose of assessing plaintiff's damages; that he is entitled to judgment for $1,189.05 damages, together with interest, costs and an extra allowance of five percentum.
The learned Appellate Division reversed this judgment upon the law and the facts, and dismissed the complaint, with costs, which were taxed at $358.42. This judgment is now before us for review.
The Appellate Division held, in substance, that the trial judge had no jurisdiction, after the vacation of the premises, to try the cause and dismiss the complaint as stated. *Page 418
We are of opinion that the ruling of the trial judge was proper and the Special Term had jurisdiction of the cause. It is well settled that the jurisdiction of a court of equity depends upon the position of the plaintiff and the relief he is entitled to at the time of the bringing of his action, and if the jurisdiction has once attached it is not affected by subsequent changes so long as any cause of action survives, although for that there may be an adequate remedy at law. (Van Allen v. N.Y. El. R.R.Co., 144 N.Y. 174, and cases cited; Valentine v. Richardt,126 N.Y. 272; Koehler v. N.Y. El. R.R. Co., 159 N.Y. 223;Henderson v. N.Y.C.R.R. Co., 78 N.Y. 423; Beedle v.Bennett, 122 U.S. 71, 75; Clark v. Wooster, 119 U.S. 322,325, and cases cited at latter page.)
The additional point is made that this action is for a nuisance and governed by section 968 of the Code of Civil Procedure. That section reads as follows: "In each of the following actions, an issue of fact must be tried by a jury, unless a jury trial is waived, or a reference is directed:
"1. An action in which the complaint demands judgment for a sum of money only.
"2. An action of ejectment; for dower; for waste; for a nuisance; or to recover a chattel."
In Cogswell v. N.Y., N.H. H.R.R. Co. (105 N.Y. 319) this court held that actions like the one before us are not governed by this section. In the case cited the complaint demanded both legal and equitable relief. It prayed judgment for damages and an abatement of the nuisance complained of, and also for an injunction restraining the defendant from continuing the nuisance and from permitting its lands to be used for the purpose of carrying on any operations thereon which would injure the plaintiff in the enjoyment of her property. Judge ANDREWS said: "This is not, we think, an action for a nuisance within section 968 of the Code of Civil Procedure. The action of nuisance is mentioned in the section together with other common-law actions, all of which must, the section declares, be tried by a jury, unless a jury is waived or a reference is directed. Reading the section in connection with section 1660 it is clear, we think, that an equitable action to *Page 419 restrain the continuance of a nuisance demanded is not an action for a nuisance within section 968."
In Olmsted v. Rich (25 N.Y. State Repr. 271, 275) Judge MERWIN, commenting upon the case last cited, said: "In Cogswell v. N.Y., N.H. H.R.R. Co. (105 N.Y. 319) it was very distinctly stated that an action like the present one was not within section 968. And although the facts of that case did not apply the rule to the case of a defendant, still the rule was broadly enunciated and should be followed by this court."
We are of opinion that this rule should be applied to both the plaintiff and defendant, as it is clear that the present case is not contemplated by section 968, and is not distinguishable from actions in equity to restrain the operation of an elevated railroad and for damages, in which the latter is merely incidental and alternative and the defendant is not entitled to a jury trial in fixing the amount.
We are also of opinion that the dismissal of the complaint cannot be sustained.
In a recent case this court referred to the settled rule which is established by a long line of authorities, as follows: "The Appellate Division, upon reversing a judgment of the trial court, where there was an issue of fact, cannot render final judgment in favor of the appellant, but must grant a new trial unless the facts are conceded, or are established by written instruments, or are found in full by the trial judge, or the evidence is not only undisputed, but diverse inferences cannot be drawn therefrom, and it is manifest that no evidence can be produced which will entitle the respondent to recover." (Ross v. Caywood,162 N.Y. 262. See, also, Astor v. L'Amoreux, 8 N.Y. 107;Edmonston v. McLoud, 16 N.Y. 543; Schenck v. Dart,22 N.Y. 420; Cuff v. Dorland, 57 N.Y. 560, 564; Whitehead v.Kennedy, 69 N.Y. 462, 468; Snyder v. Seaman, 157 N.Y. 449;New v. Village of New Rochelle, 158 N.Y. 43; Lopez v.Campbell, 163 N.Y. 340.)
The findings of the trial judge are based upon a sharp conflict of evidence and the dismissal of the complaint was clearly error under the above rule. *Page 420
The appellant insists that if we reverse the judgment of the Appellate Division a new trial ought not to be ordered, but the judgment of the Special Term should be affirmed.
This contention cannot be sustained on the facts as presented by this record. At the trial the evidence was conflicting, and it cannot be said that there was no evidence warranting the reversal of the Special Term judgment.
In Otten v. Manhattan Railway Co. (150 N.Y. 395, 400) the rule governing this situation is discussed by Judge VANN. After pointing out that this court has no power to review a question of fact in a civil case, that our jurisdiction is limited both by the Constitution and statute to questions of law, and that where the Appellate Division affirms unanimously upon the facts, we cannot look into the record to ascertain if there is evidence sustaining the findings, he says:
"When the Appellate Division reverses upon the facts there is no constitutional inhibition, and a question of law arises as to whether there was any evidence to support the view of that court. If it appears that there was any material and controverted question of fact, the decision thereof by the Appellate Division is final. * * * Whether there is a question of fact in the case is always a question of law, depending possibly upon a conflict of evidence and possibly upon conflicting inferences which may be drawn from uncontradicted evidence. Unless there was a material question of fact the reversal was an unlawful exercise of judicial power, and constituted an error which may be corrected by this court." (Edson v. Bartow, 154 N.Y. 199, 217.)
As the Appellate Division dealt with a question of conflicting evidence, we cannot review its decision on the facts.
The judgment appealed from should be so modified as to order a new trial, the costs at Special Term and in the Appellate Division to abide the event, and as so modified affirmed. The costs in this court should also abide the event.
HAIGHT, VANN, CULLEN and WERNER, JJ., concur with PARKER, Ch. J.; O'BRIEN, J., concurs with BARTLETT, J.
Judgment accordingly. *Page 421