Opinion
May 9, 1949.
In an action based on allegations that defendant dumped garbage and other waste matter on plaintiff's property, plaintiff requested judgment for the abatement and removal of the nuisance and for $100,000 damages. After the cause was partly tried on the law side of the court, the Trial Justice made an order directing that the action be transferred to the Special Term calendar for trial as an equity action. Order reversed on the law and the facts, without costs, and the cause remitted to Mr. Justice F.E. JOHNSON for the trial to continue as an action at law. The complaint sets forth a cause of action at law, to which equitable relief is added as an incident. There is no threat of future wrongful acts on the part of defendant. Complete relief for the alleged wrongful acts of defendant may be granted at law. If defendant is found to be liable, defendant may be cast in damages for the expense of removing the nuisance and for other injuries to plaintiff's property. The mere prayer in the complaint for the removal of the nuisance does not transform this cause of action from one essentially at law to one in equity. ( City of Syracuse v. Hogan, 234 N.Y. 457.) Johnston, Acting P.J., Adel, Sneed, Wenzel and MacCrate, JJ., concur.