Bergman v. Manhattan Railway Co.

—The principles regulating the rights and liabilities of abutting owners, with reference to elevated roads, have been so often declared that the adjudications have become too familiar to require citation. It is necessary only to refer to the points which it is claimed are not embraced within the general principles decided.

At the opening of the trial the defendants insisted that they were entitled to a jury trial by the constitution of the state and the provisions of the Code of Procedure. The claim was over. *151ruled and defendants excepted. The ruling was proper. _ This court decided in Sears v. The Met. El. R. R. Co. et al. opinion, February general term, 1891, that “when a plaintiff brings an action for both legal and equitable relief, in respect of the same cause of action, the case presented is not one of right, triable by jury under the constitution.” Citing Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y., 319 ; 7 N. Y. State Rep., 203.

This disposes of the only novel question raised. The evidence fully sustains the findings of fact, and the rules of law were properly observed and applied by the trial court . The exceptions taken by the defendants’ counsel are without merit, and the judgment appealed from must be affirmed, with costs.

Sedgwick, Ch. J., concurs.