Remsen v. NEW YORK, B. & M. B. R.

Appellate Division of the Supreme Court of New York

Remsen v. NEW YORK, B. & M. B. R.

97 N.Y.S. 902

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 9, 1906

StatusPublished

This text of 97 N.Y.S. 902 (Remsen v. NEW YORK, B. & M. B. R.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Remsen v. NEW YORK, B. & M. B. R., 97 N.Y.S. 902 (N.Y. Ct. App. 1906).

Pincite

Opinions

GAYNOR, J.

This verbose complaint alleges nothing but a cause of action for the recovery of the possession of real property. That the defendant is a steam railroad company, and has tracks on it and runs trains of cars over it, does not make the suit one in equity. If the plaintiff recovers possession, and the defendant leaves its ties and rails after it, that presents no case calling for the assistance of a court of equity. The plaintiff’s own hands will suffice. And it is to be presumed that when the plaintiff gets into possession by a common law judgment the defendant will not run a train of cars over him or his property before he can pull up the ties and rails. If the defendant should be guilty of continuous trespass upon his property after he is given possession, which cannot be presumed, equity will give protection then.

And if there were some incidental equitable relief needed to supplement a common law judgment for the plaintiff, that could not deprive the defendant of its right to trial by jury. The action would still be ejectment, and such incidental relief could be given by the court at the same time. Davis v. Morris, 36 N. Y. 569. The case of Hahl v. Sugo, l69 N. Y. 109, 62 N. E. 135, 61 L. R. A. 226, 88 Am. St. Rep. 539, is not to the contrary; it is nothing but an illustration of the old rule against the splitting of causes of action. Bendernagle v. Cox, 19 Wend. 207, 32 Am. Dec. 448. It does not decide anything about the right to a jury trial. It only holds that the plaintiff there had only one cause of action, i. e., a common law cause of action of ejectment in which some incidental equitable relief might be appropriate under our practice system, and not that he had two causes of action, i. e., one at law and the other in equity. If it had held the latter, it could not have held that the plaintiff should have united the two causes in one action. No one is obliged to do that. The rule is only against splitting one cause of action.

The order is affirmed.

Order affirmed, with $10 costs and disbursements.

WOODWARD and JENKS, JJ., concur. HIRSCHBERG, P. J., concurs in the result.

Free access — add to your briefcase to read the full text and ask questions with AI

GAYNOR, J.

This verbose complaint alleges nothing but a cause of action for the recovery of the possession of real property. That the defendant is a steam railroad company, and has tracks on it and runs trains of cars over it, does not make the suit one in equity. If the plaintiff recovers possession, and the defendant leaves its ties and rails after it, that presents no case calling for the assistance of a court of equity. The plaintiff’s own hands will suffice. And it is to be presumed that when the plaintiff gets into possession by a common law judgment the defendant will not run a train of cars over him or his property before he can pull up the ties and rails. If the defendant should be guilty of continuous trespass upon his property after he is given possession, which cannot be presumed, equity will give protection then.

And if there were some incidental equitable relief needed to supplement a common law judgment for the plaintiff, that could not deprive the defendant of its right to trial by jury. The action would still be ejectment, and such incidental relief could be given by the court at the same time. Davis v. Morris, 36 N. Y. 569. The case of Hahl v. Sugo, l69 N. Y. 109, 62 N. E. 135, 61 L. R. A. 226, 88 Am. St. Rep. 539, is not to the contrary; it is nothing but an illustration of the old rule against the splitting of causes of action. Bendernagle v. Cox, 19 Wend. 207, 32 Am. Dec. 448. It does not decide anything about the right to a jury trial. It only holds that the plaintiff there had only one cause of action, i. e., a common law cause of action of ejectment in which some incidental equitable relief might be appropriate under our practice system, and not that he had two causes of action, i. e., one at law and the other in equity. If it had held the latter, it could not have held that the plaintiff should have united the two causes in one action. No one is obliged to do that. The rule is only against splitting one cause of action.

The order is affirmed.

Order affirmed, with $10 costs and disbursements.

WOODWARD and JENKS, JJ., concur. HIRSCHBERG, P. J., concurs in the result.

Cite This Page — Counsel Stack

Bluebook (online)

97 N.Y.S. 902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/remsen-v-new-york-b-m-b-r-nyappdiv-1906.

Opinions

Related

Cite This Page — Counsel Stack