Boyle v. Wallace

187 A.D. 895

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1919
• Status: Published

Opinion

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. The action is for a mandatory injunction with incidental damages. It is not an action to recover real property with incidental equitable relief. Equitable relief cannot be given in an action at law. (Carroll v. Bullock, 207 N. Y. 567; Wheelock v. Noonan, 108 id. 179; Baron v. Korn, 127 id. 224; Cogswell v. N. Y., N. H. & H. R. R. Co., 105 id. 319; Loomis v. Decker, 4 App. Div. 409; Hahl v. Sugo, 169 N. Y. 109.) Remsen v. N. Y., B. & M. B. R. Co. (111 App. Div. 413) and Davis v. Morris (36 N. Y. 569), cited by the court below, decide nothing to the contrary. In the Remsen Case (supra) it was held that the cause of action stated was to recover real property. In the instant ease it is conceded that plaintiff is entitled to equitable relief, if entitled to recover at all. In Davis v. Morris (supra) a judgment for money only was all the plaintiff demanded. Defendant’s right to a jury trial is amply protected by section 970 of the Code of Civil Procedure. Jenks, P. J., Mills, Rich, Kelly and Jaycox, JJ., concurred.