Kornder v. Kings County Elevated Railroad

■ There áre two actions before the court; which were tried together, and the questions on appeal are the same in both, and will be treated as a single action; the plaintiffs being husband and wife, and the owners of the real estate involved in the controversy. The action is for an injunction restraining the defendant from operating its elevated railroad until it has compensated the plaintiffs for their easements of light, air, etc., which it is alleged the railroad company has taken. The plaintiffs are the owners of two parcels of ground, with the buildings thereon, at the corner of Fulton and Adelphi streets, and it is conceded that the defendant, which is the successor of the Kings County Elevated Railway Company, operates its railroad in front of such premises. Upon the trial of the actions the learned court at special -term handed down a decision dismissing the complaint upon the merits, for the reason that the plaintiffs had failed to establish any money damages to the property, and from the judgment entered appeal comes to this court.

The plaintiffs urge that there was evidence to support a finding that they had suffered a money damage, but, if this be conceded, it is equally true that there was evidence to support the finding that no money damages had been shown, and it is not for this court to decide upon conflicting evidence that the court below has erred. It is insisted, however, that, even if no money damages were established, it was error for the court to dismiss the complaint upon the merits, as the plaintiffs were entitled to nominal damages; citing Moore v. Railroad Co., 130 N. Y, 523 , 29 N. E. 997 , 14 L. R. A. 731 , and other authorities. We are of opinion, however, that, where the ,action is in dquity, the first essential is that the plaintiff should establish his right to some kind of relief;—that he should be áble to show to the court that he is within some of the rules of equity,—and, in the absence of evidence which would warrant the court in granting some kind of equitable remedy, there, is no reason ,f.or the court to retain jurisdiction of the action for the purpose of awarding nominal damages. The dismissal of the complaint merely operates to leave the plaintiffs to their remedy at law, and is an adjudication only upon the question of damages up to the time of bringing the action.. In Moore v. Railroad Co., supra, a judgment in favor of the defendant, entered upon the verdict of a jury, was reversed because of an error on the ' part of the court in excluding from the consideration of the jury evidence as to the loss of privacy, the court holding that the jury might have awarded the plaintiff nominal damages if this evidence had not been excluded from their consideration; but we find no authorities which hold that a court of equity, having reached the conclusion that there,was no evidence to support equitable relief, is bound to award nominal damages, unless such damages are necessary to protect a property interest of the plaintiff,—as in Skinner v. Allison, 54 App. Div. 47 , 66 N. Y. Supp. 288 , where the defendant had violated a covenant, but so slightly as not to afford any grounds for more than nominal damages. “A judgment awarding nominal damages] in favor of the plaintiff, however, was necessary,” say the court, “in order to preserve her rights under the covenant, and enable her. to prevent other possible breaches thereof in the future.” In that case the question

Judgment modified in accordance with opinion of WOODWARD, J., and, as modified, affirmed, with costs. All concur.