the appellant has neglected and refused to comply with such demand; and that other defendants have certain interests in said premises, either as tenants or mortgagees. The judgment demands, with other things, that appellant be perpetually enjoined and restrained from further maintaining said building and encroachments and that he be ordered and directed forthwith, at his own expense, to remove the same and restore the street and sidewalk in front of said premises to the condition they would be in if said buildings and encroachments were not thereon; that in case. appellant fails in this respect that plaintiff be authorized to do so at his expense; that the deed from Church and wife to the appellant and the mortgages held by other defendants thereon be amended and reformed so as to exclude therefrom the strip in question.

The answer of the appellant, after admitting the ownership of the lot described in the complaint alleged to be owned by him, denied its other material allegations as to plaintiff's title in the strip of land conveyed to the appellant by Church and wife, and alleged that the appellant's grantors had a good title to said strip which they conveyed to him. The answer also set up as an affirmative defense that for a period of sixty-five years or more prior to the commencement of the action the appellant and his grantors and predecessors in title have been in possession of said twenty-nine-foot strip and have been in exclusive possession, control and occupancy thereof, and that their title thereto has not, until the commencement of this action, been disputed or questioned by the plaintiff. The Statute of Limitations is also pleaded and other defenses, which it is unnecessary here to set forth.

After issue had been joined the plaintiff put the action on the Special Term calendar for trial. The appellant moved to have the same stricken therefrom, on the ground that it had been improperly placed thereon, since he, as a matter of right, was entitled to a jury trial. His motion was denied and then an appeal was taken by him to the Appellate Division, where the order was unanimously affirmed. Leave, however, was given to appeal to this court and the following question certified: "Are the defendants entitled to a trial by jury as a matter of right?"

If the appellant were entitled to have the issues tried by a jury as a matter of right, then the order appealed from is wrong and should be reversed; otherwise, it should be affirmed. The joinder of equitable causes of action with others purely legal does not deprive a defendant of the right of a trial by jury. (Bradley v. Aldrich, 40 N. Y. 504, 511.) An analysis of the complaint and answer indicates as it seems to me, as clearly as words can, that the main issue to be tried is the title to the twenty-nine-foot strip. The plaintiff alleges it has title and its right to immediate possession. Appellant denies that plaintiff has title and alleges he has the title and that he is rightfully in possession. The fact that

plaintiff has, as an incident to the main question to be determined, asked for equitable relief, does not change the form of the action. The court looks to substance and not to form. It determines from the allegations of the complaint and answer the issue to be tried. The form of the action, however it may be disguised by words, allegations or the prayer for judgment, will not be permitted to mislead the court or divert its attention from the main issue to be determined. The prayer for judgment is not decisive and does not control the nature of the action.

No matter what may be said, the action is to determine and settle the title to the twenty-nine-foot strip. This being so, the action is brought within the statutory definition of an action in ejectment, which is, "An action to recover the immediate possession of real property." (Code of Civ. Pro., sec. 3343, subd. 20; Civ. Pr. Act, sec. 7, subd. 8.) The action being in ejectment the appellant had a legal right to have the issues tried by a jury. The statute so provides. (Code of Civ. Pro., sec. 968, subd. 2; Civ. Pr. Act, sec. 425, subd. 2.) The Constitution provides that the right of trial by jury in all cases in which it has been heretofore used shall remain inviolate. (Art. 1, sec. 2.) An action to recover the possession of land, where the title thereto is disputed, has, so far as I am aware, always been triable by a jury and a defendant cannot be deprived of that right by allegations in a complaint that the plaintiff, if he establishes his title, is entitled to certain equitable relief. (Bryan v. McGurk, 200 N. Y. 332, 337.) If the plaintiff succeeds upon the trial in establishing its title to the land in question, then the deed from Church and wife, and the mortgages given upon such strip, necessarily fall. In that event it requires no judicial decree to bring about such result. The judgment awarding plaintiff possession and decreeing that it has title is all that is necessary.

It is contended that the real issue between the parties is the true location of the boundary line between adjoining owners, that is, between South Salina street and appellant's lot. But assuming this to be so, it does not deprive the defendant of a jury trial. This court stated in Leprell v. Kleinschmidt (112 N. Y. 364) that it was not aware of any rule by which a dispute as to the true location of a boundary line between adjoining owners did not involve a question of title to real estate or constitute an exception to the characteristics of an action of ejectment or the remedies which that action affords.

It is suggested that the plaintiff cannot recover in this action all the relief to which it is entitled if it be held that it is in ejectment. I do not think this follows. The statute provides that: "In an action to recover real property, or the possession thereof, the plaintiff may demand in his complaint, and in a proper case recover, damages for withholding the property." (Code of Civ.

Pro., secs. 1496, 1497; Civ. Pr. Act, sec. 990.) If there be involved in such action the expense of abating a nuisance or the removal of incumbrances, then the expenses of such abatement or removal, if proper allegations be inserted in the complaint, may be recovered (Code of Civ. Pro., secs. 1660-1662; Real Property Law [Cons. Laws, ch. 50], sec. 529) and the judgment may be enforced by execution. (Code of Civ. Pro., sec. 1240; Civ. Pr. Act, sec. 504.) If it cannot be enforced by execution, then the defendant may be punished for contempt in refusing to comply with the judgment. (Code of Civ. Pro., sec. 1241; Civ. Pr. Act, sec. 505.)

The Supreme Court has general jurisdiction in law and in equity and now there is only one form of a civil action. The distinction. between actions at law and suits in equity and the forms of those actions has been abolished. (Code of Civ. Pro., sec. 3339; Civ. Pr. Act, sec. 8.) The court has jurisdiction in an action of ejectment to award the plaintiff all the relief to which it is entitled. It can settle the title to the piece of land in dispute and if a conclusion be reached that the plaintiff is the owner and entitled to possession, it can, as incidental to such judgment, award such damages against defendant as will compensate the plaintiff for being kept out of possession, as well as for the expenses in removing encroachments upon such property and restoring it to such condition as it would have been if defendant had not wrongfully taken possession thereof.

The order appealed from, therefore, should be reversed and the motion to strike the cause from the Special Term calendar granted, with costs in all courts. The question certified is answered in the affirmative.

CARDOZO, J. (dissenting). 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.) 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; Hahl v. Sugo, 169 N. Y. 109, 116; cf. Village of Oxford v. Willoughby, 181 N. Y. 155; City of N. Y. v. Rice, 198 N. Y. 124.) There are like decisions else

where (Harrington v. McCarthy, 169 Mass. 492, 494; Lynch v. Union Institution for Savings, 158 Mass. 394; 159 id. 306; 5 Pomeroy, §§ 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. Whatever vestige of it survives, is at most a guide to discretion, not a restriction upon power (Wheelock v. Noonan, [supra, page 195]; Baron v. Korn.) Our ruling in Hahl v. Sugo 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.

1

The order shall 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.2

1 See the statement of Hahl v. Sugo, 178n., supra, 5th par.; "Does an adjudication respecting the abatement of a nuisance bar an action for damages therefor," 58 L. R. A. 735n.

2 See the adverse criticism by C. E. Clark, 32 Yale L. J. 707; the case is approved in 23 Colum. L. Rev. 590; see J. L. Rothschild, 23 Colum. L. Rev. 622; 9 Corn. L. Q. 73. On the constitutional right of jury trial. see Bodwell v. Crawford, 26 Kan. 292 (1881); Atkinson v. Crowe 80 Kan. 161 (1909); supra, 154n., 222n., 258n. Cf. cases in which equity, having taken jurisdiction on recognized grounds, settles title: Peck v. Ayers, 116 Fed. 273 (C. C. A., 6th 1902); Woolfolk v. Graves, 113 Va. 182. 189 (1911); contra, Parker v. Shannon, 114 Ill. 192 (1885); Freer v. Davis, 52 W. Va. 1 (1902).

CHAPTER IV

DEFENSES TO SPECIFIC RELIEF ALTHOUGH
OTHER REMEDIES ARE INADEQUATE

BEHRENS v. RICHARDS.

Omil

HIGH COURT OF JUSTICE, CHANCERY DIVISION, 1905.

[Law Reports, [1905] 2 Chancery, 614.]

THIS was an action for an injunction to restrain the defendants from entering and trespassing upon the plaintiff's lands and from breaking down a wall and wood fence, filling up a trench, removing and displacing two stone posts, breaking down and displacing a bed of bulbs, a turf wall, and turf fence, and from interfering with the plaintiff in the quiet possession and enjoyment of his lands; damages for the wrongful acts of the defendants; and costs.

The defendants alleged as their justification that the plaintiff had interfered with public highways.

The scene of the dispute in this case is laid upon a beautiful, rocky piece of the Cornish coast, in the parish of St. Hilary, near Marazion. Until recently, there were several means of access from the foreshore (beach) to the road running along the top of the cliffs. One path, marked in green on the plan, was used for carrying up fish from the shore. Another path, marked in purple, was also used by fishermen. Both paths pass by some old ruins of smugglers' storehouses, high above the sea. A somewhat wider way, colored in red, was used for bringing up seaweed, and also for reaching some beautiful caverns on the shore. At a point on the road is a small recess, or bay, which the defendants say has been used for years as a passing place for carts. The dispute in this case arises as to the three ways and this passing place.

The defendants are fishermen and others of a like station in life, who have most of them been born in this district and have lived there all their lives. The plaintiff is a gentleman who from the year 1882 onwards has resorted to this beautiful piece of the country from time to time, and who ultimately, some eighteen months ago, became the purchaser of several acres of land extending to the sea and including the sites of these disputed places. Unfortunately he has not made himself popular in the district. Being of opinion, whether rightly or wrongly, that he was within his rights, he took physical means to prevent the country people