Hooker v. City of Rochester — 36 N.Y. St. Rep. 458

Majority

p. 458

James H. Hooker, Resp’t, v. The City of Rochester, App’lt.^[1]

(Court of Appeals,

Filed March 17, 1891.)

Headnote

Appeal—Judgment—Failure to make findings.

In an action for an injunction and damages specific issues were tried by a jury and judgment was directed to be entered for the amount of their verdict and for an injunction. Such judgment was entered on motion of plaintiff’s attorney at special term, defendant’s attorney objecting but not suggesting that there was further evidence or informality in the application. Held, that the failure of the judge to make a finding of fact and law was an irregularity merely, and that if defendant was entitled to any relief the remedy was by motion, not by appeal.'

Appeal from judgment of the supreme court, general term, fifth department, affirming judgment upon verdict at circuit on issues framed in an action for maintaining a nuisance, and by which also the defendant was permanently enjoined from continuing such nuisance after October 1, 1889.

Henry J. Sullivan, for app’lt; Eugene Van Voorhis, for resp’t

There seems to be no reasonable ground for this appeal. This was an equitable action for an injunction and for damages. The right of the plaintiff to damages has been adjudicated by three several judgments in his favor, recovered prior to the present one, based upon the same wrong, the cases differing only in respect of the period for which damages were given for the nuisance complained of. The right to an injunction follows as a matter of course from the continuing character of the injury, and this also has been adjudicated in other actions by other parties similarly situated. Chapman v. City of Rochester, 110 N. Y., 273 ; 18 N. Y. State Rep., 133; Jackson v. Same, 35 id., 73.

The sole ground of the appeal is that it was irregular for the

p. 459

judge at special term to make an order for judgment for the dam* ages found by the jury, and for an injunction, without a trial of the question whether the plaintiff was entitled to equitable relief and a decision stating the findings of fact and law. There was but one issue of fact in the case and that was submitted to the jury and was found in favor of the plaintiff. The plaintiff’s attorney then moved at special term upon notice for judgment upon the verdict and for an injunction.

The defendant’s attorney on the hearing of the motion contented himself with objecting simply, without suggesting that there was further evidence in the case, or that there was any informality in the application. The order for judgment recites that it was made on the pleadings, the verdict and the evidence in the case, and the court', without making any special findings, ordered judgment in favor of the plaintiff for damages as found by the jury, and for an injunction, and pursuant thereto judgment was entered. The appeal is from the order and judgment. It must be assumed that the court adopted, as it had a right to do, the verdict of the jury upon the issue of fact There was then nothing left to be tried. The verdict covered the whole ground of controversy on the facts, and the right of the plaintiff to an injunction followed upon the adoption by the court of the finding of the jury. See Hammond v. Morgan, 101 N. Y., 179 ; Acker v. Leland, 109 id., 5; 14 N. Y. State Rep., 23. The correct practice was for the judge to have made a finding of fact and law; but this was an irregularity merely. The defendant’s counsel did not, so far as appears, object to the form of procedure, or make any request for a formal trial or findings. It would be the sheerest technicality to reverse the judgment or order for the reasons suggested. If the defendant was entitled to any relief, the remedy was by motion.

The judgment and order should be affirmed, with costs.

All concur.