Previous to the adoption of the Code, the thirty-seventh section of "Title one. Of the action of ejectment" *Page 145 (2 R.S., 309) was applied only to actions of ejectment, as the position of the section, and its language, clearly import was its design. It was never applied to equitable actions, though they might, and frequently did determine, not only the possession, but the whole title to the premises in controversy.
Neither was it ever applied to the action of trespass quareclausum fregit, which was strictly legal in its character, and by means of which the whole legal title, including the right of possession, was involved. And it was not very uncommon for a party, claiming the title to land and the right of possession, and who desired to avoid the delays consequent upon the statutory right to new trials in an action of ejectment, to bring his action in trespass, and so establish his right upon a single trial, and recover his damages for the trespass; and when judgment was perfected, if the defendant did not yield the possession, to bring his action of ejectment; on the trial of which, the record of judgment in the action of trespass would be conclusive evidence of his right, and render hopeless any attempt to obtain a new trial.
The Code has given jurisdiction in law and equity to the same courts. It has authorized the uniting of legal and equitable claims and rights in the same action, where they arise out of the same transaction, as provided in section 167; and it has authorized equitable defences to be interposed to actions at law, according to section 150. But under it the section before referred to has been allowed to operate only in cases where the legal right to the possession was involved; where the action was in all respects similar to the former action of ejectment.
The Code has also allowed, in almost all kinds of actions, that a trial may be had, by consent of the parties, before a referee or the court alone, without the intervention of a jury; and this includes legal, possessory actions, strictly in the nature of ejectment. And it is because of this, and not for the purpose of extending the section in question to other than *Page 146 actions of ejectment, that it has been so amended as to apply to trials before a referee, or before the court.
I have no doubt that the section, as amended, still applies only to legal actions in the nature of ejectment.
That the Special Term properly denied the application for the statutory right to a new trial, and that the subsequent order made to set aside the judgment, and for a new trial, was not only discretionary, but was properly denied by the Special Term, and that the judgment of the General Term affirming that order should be affirmed.
HUNT, J., also read an opinion for affirmance, on substantially the same grounds.
All concur except SMITH, J., who does not sit.
Order affirmed.