I am unable to concur in the opinion of the court.
1. This is not an action of ejectment. It is an action in equity to enjoin the obstruction of a highway. Ejectment furnishes some remedy, but not one complete and adequate. In an action at law, execution must direct the sheriff to deliver the possession of the property to the party thereto entitled (Code Civ. Pro. § 1373; Civ. Pr. Act, § 644). "The sheriff might not regard it as his duty to deliver possession by taking down the wall, which would burden him with the risk of injury to other portions of defendant's building" (Baron v. Korn, 127 N.Y. 224,228). Even if he stood ready to assume the risk, he would expect the plaintiff to assume the cost. "In equity, the obligation to remove can be placed directly on the party who caused the wall to be erected" (Baron v. Korn, supra). An owner is entitled to the remedy that will place the risk and the cost upon the shoulders of the wrongdoer. We have so held in this court. (Baron v. Korn, supra; Hahl v. Sugo, 169 N.Y. 109,116; cf. Village of Oxford v. Willoughby, 181 N.Y. 155; Cityof N.Y. v. Rice, 198 N.Y. 124). There are like decisions elsewhere (Harrington v. McCarthy, 169 Mass. 492, 494;Lynch v. Union Institution for Savings, 158 Mass. 394; 159 id. 306; 5 Pomeroy Eq. Jurisprudence and Equitable Remedies, §§ 4359, 4360).
2. Equitable remedies being necessary for the attainment of complete relief, there is no rule that a court of equity must wait until the suitor's title to the land has been first made out at law. Such a rule there may once have been. It may still prevail in other states. In this state it has been long abandoned (Broistedt v. South Side R.R. Co. of L.I., 55 N.Y. 220;Lacustrine Fertilizer *Page 465 Co. v. Lake Guano F. Co., 82 N.Y. 476, 486; West PointIron Co. v. Reymert, 45 N.Y. 703; Olmsted v. Loomis,9 N.Y. 423, 432; Baron v. Korn, supra; Hahl v. Sugo, 169 N Y at pp. 116, 117; Hinckel v. Stevens, 17 App. Div. 279, 281). Whatever vestige of it survives, is at most a guide to discretion, not a restriction upon power (Wheelock v. Noonan,108 N.Y. 179, 187; Baron v. Korn, supra). Our ruling inHahl v. Sugo (supra) suggests that even the vestige is now extinct. We have left far in the distance the wasteful duplication of remedies and trials. We shall set the clock back many years if we return to it to-day.
The order should be affirmed, with costs, and the question certified answered in the negative.
All concur with McLAUGHLIN, J., except CARDOZO, POUND and CRANE, JJ., who dissent and concur in opinion by CARDOZO, J.
Orders reversed, etc.