text:
    ISAAC P. MARTIN, et al., Respondents, v. ELLIOTT SMITH, et al., Executors, &c., et al., Appellants.

      Partnership accounting.—Death of one partner after dissolution ; specific claim for contribution for expenses as to one asset, and a denial thereof— outstanding assets afford no reason for refusing interlocutory judgment— Receiver of partnership assets, may be appointed to collect or dispose of, though one of the partners is deceased.—Practice—when findings not necessary.

    Neither the fact that one of the members of a firm died after its dissolution; nor the fact of averments being made in the complaint in respect of expenses and disbursements incurred and made, in and about divers transactions had since the death of the deceased, in respect of an asset of the firm, and a claim made for contribution by the estate of the deceased partner, which averments are denied, and which claim is disputed by the executors; nor the fact that there are outstanding assets uncollected— afford any reason for refusing an interlocutory judgment for an accounting of the partnership affairs.
    A receiver may be appointed in action commenced after the dissolution of partnership for an accounting, and to wind up the partnership affairs, to collect debts due the firm, or to dispose of them as the court may direct. This, although one of the partners may have died since the dissolution.
    Findings are not necessary when judgment is rendered on the pleadings.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.

      Decided May 3, 1886.
    Appeal from an interlocutory judgment entered on the decision of a judge at special term.
    This is an action for a partnership accounting. The complaint alleged that plaintiff and defendants, Elliott Smith and S. Sidney Smith, together with Augustus F. Smith, for several years prior to January 1, 1876, had been, and were up to that date copartners, under the firm name of Martin & Smith, in the business of attorneys and counsellors at law; that the firm was on that day dissolved by the retirement of Augustus F. Smith ; that Augustus F. Smith died in August, 1876, leaving a will which was duly admitted to probate, and letters testamentary were duly issued to Elliott Smith, S. Sidney Smith and Howard A. Smith, as executors thereof ; that the liquidation of the firm had been going on for nine and one-half years. These allegations were admitted by the answer. The complaint further contained various allegations respecting divers transactions had since the decease of the retiring member, in respect of a certain asset of the ■firm called the Mariposa claim, among them, that divers expenses had been incurred, and disbursements made in and about these transactions which. had been paid by plaintiffs, and that a certain proportion thereof, to wit, $4,067.68, should be paid by the estate of the retiring partner ; that the executors had not paid the same, but resisted the payment thereof on technical and untenable grounds.
    The answer denied all these allegations, in which it admitted the facts that the executors were called on to pay the sum of $4,067.68, and that the same had not been paid ; and made some affirmative allegations tending to establish that they were not bound to pay that sum, and that they were not bound to contribute to the expenses and disbursements incurred and made in and about said Mariposa claim.
    The complaint further alleged that the remaining partners became, and were in fact the liquidating partners.
    The answer denied that defendants, Elliott Smith or S. Sidney Smith, ever became or were in fact liquidating partners, or that they ever acted as such.
    The complaint further alleged that the remaining property and assets of the said firm in liquidation comprised open book accounts, for which bills have been rendered at various times, amounting to about $13,000, also of a number of other book accounts for which bills were rendered from time to time, and which accounts had been charged off to profit and loss, the amount of which the plaintiffs were unable at that time to state, also two first mortgage bonds of the Florida Central Railroad Company, of $1,000 each, with coupons since January, 1879, upon which the railroad company ceased to pay interest after January, 1879, also the said Mariposa claim amounting, with interest and the said outlay, to the sum of about $42,000, also a proportionate interest in several suits then pending and undisposed of.
    The answer denied these allegations, but alleged that there were assets of said firm, consisting of debts and accounts due thereto, which remained uncollected.
    The complaint claimed that the said partnership property remaining should be closed out by a public sale thereof, without further delay; and that the estate of Augustus F. Smith, deceased, and the executors of his will should be debited with said sum of $4,067.68, with interest, in the accounting therein prayed for.
    The answer alleged that the plaintiffs, or said Isaac P. Martin, undertook and agreed as liquidating partner or partners, at the time of the dissolution of said firm, to collect the debts and accounts due to the firm, with reasonable care and diligence, and that it is the duty of said liquidating partner or partners, to collect such assets in the usual course of business from the individuals owing the same, and that they are not equitably entitled to have the same sold at public sale, for the reason that such a sale would necessarily result in an entire loss and sacrifice of such claims, so far as these defendants, being executors, are concerned; and denied that the estate of Augustus F. Smith, deceased, or the executors of his will should be debited with the sum of $4,067.68.
    The complaint prayed that an account might be taken; that a referee be appointed to take and state such account; that judgment be rendered against the partners, and said estate, respectively, for the amounts respectively (if any) found due by them, respectively, to the other partners, or said estate, on such accounting; that a receiver be appointed with the usual powers and duties, or that a referee be appointed to take charge of and sell at public auction all the remaining property and assets of the firm, and that the net proceeds of such sale (after payment of debts and liabilities, if any) be distributed between the surviving partners, and said estate, in proportion to their respective interests therein, and such interest should appear in such accounting.
    The cause came on for trial at special term, when plaintiffs’ counsel moved on the pleadings for an interlocutory judgment, that an accounting be had, and for a reference for that purpose.
    The motion was granted.
    Thereafter an interlocutory judgment was made and entered, whereby it was adjudged that the plaintiffs have judgment, that an account be taken and stated of all the partnership dealings and transactions of the said firm, from the date of its formation to the time of its dissolution and since its dissolution, and of the moneys and other things received by or paid to the respective partners thereof, respectively, and their respective representatives, or paid out by them respectively in respect thereto, before and since the time of such dissolution down to and including the time of such accounting, and that an account be stated showing the respective amounts of- credit or debit, as the case might be, of said partners respectively, and of the defendants Elliott and 8. Sidney Smith, as executors of the last will, etc., of Augustus F. Smith, deceased, to the others respectively, in respect to the said partnership transactions, and in respect to the liquidation of the business of said firm, and showing the respective interests of the respective partners and of said executors in the remaining property and assets of said firm, or in the proceeds thereof when sold or otherwise realized after first paying thereout all indebtedness and liabilities (if any) of said firm. And whereby it was further adjudged that S. J., be and he thereby was appointed referee to take and state such account and to report the same to the court, and whereby it was further adjudged that said referee report to this court the evidence taken by him in such accounting, and that upon the coming in of such report the final judgment be settled by a judge of the court upon eight days’ notice by either party, and that either party be at liberty to apply to the court at any time for any further provisions to be added at the foot of the decree.
    From this judgment defendants appealed.

      L. & Wm. B. Skidmore, attorneys and of counsel for appellants,
    on the question considered in the opinion, argued :—I. The court erred in directing judgment for an accounting upon the pleadings, the allegations of the answer being taken as true, as they must be here, for the following reasons, viz: A suit for accounting will not be entertained even between partners unless an indebtedness appears (Stamps v. Bracy, How. (Miss. Rep.] 314; Hunt v. Cordon, 52 Miss. 197). This does not appear by the complaint herein as to the executors of Augustus F. Smith, deceased, the plaintiffs occupy towards the estate of Mr. Augustus F. Smith the relation of surviving partners: And this notwithstanding he retired from the firm No. 1 a few months before his decease (Nicoll v. Reid, 5 Sess. Cas. [Scotch] 4th series, p. 137). When one partner dies the survivors become the owners of the personal property of the firm : They hold the legal title pending the settlement of the partnership business, and not as trustees (Beatty v. Wray, 19 Penn. St. 516; Bush v. Clark 127 Mass. 111; Smith v. Wood, 31 Md. 293; Pfiffer v. Steiner, 27 Mich. 537 ; Robertshaw v. Hanway, 52 Miss. 717 ; Story on Partnership, § 346). The law casts upon the surviving partners the duty to wind up the affairs of the partnership and pay its debts out of the assets, if sufficient, and divide the residue, if any, among those entitled to it; and it is their legal duty to collect and realize upon them, so much so that the law requires them to do it without compensation (Beatty v. Wray, 19 Penn. St. 516 ; Johnson v. Hartshorn, 52 N. Y. 180; Ames v. Downing, 1 Bradf. 334). They are not entitled to have an account taken by the court until the property of the partnership is reduced to a money basis (Trufant v. Merrill, 37 How. [N. Y.] 531; Haywood v. Hutchins, 65 N. C. 574; Durand v. Einstein, 35 How. Pr. R. 241; Porter v. Spences, 2 Johns. Ch. 171). Plaintiffs cannot avoid performance of their duty as surviving partners, by asking the court to appoint a receiver, or referee, to sell the remaining assets—no reason being shown why the plaintiffs cannot sell them, if proper to be sold, or collect them in the usual way (Weber v. Dufa, 8 How. Pr. R. 502). They are not entitled to have account taken by the court until the property of the partnership is reduced to a money basis. As to contribution for the disbursements in the Mariposa claim, no calculation can be had until all the affairs of the partnership are wound up and a balance struck, and it is thereby ascertained that there are no partnership assets to pay such balance (Gleason v. White, 34 Cal. 258).
    II. Even if the action in the opinion of the court might be entertained, despite the grounds urged for dismissing it, then it is further respectfully urged that the trial of the issues ought to have been proceeded with by the court (1) in order to ascertain in the first instance whether an accounting should be decreed, and (2) the principles upon which it should be conducted, and especially (3) whether the alleged Mariposa claim should be allowed upon such accounting, and, if allowed, (4) upon what principles it should be adjusted between the parties (Slee v. Bloom, 20 Johns. 689).
    III. The issue presented as to the claim for contribution to expenses and disbursements connected with the Mariposa matter presented difficult questions of law, and should have been tried by the court (Code Civ. Pro. § 1013 ; Swan v. Liverpool Ins. Co., 21 Hun, 259 ; Barnes v. West, 16 Hun, 68 ; Reed v. Hozier, 31 Hun, 287; Magoun v. Sinclair, 5 Daly, 70), especially as no long issue appears to be involved (Keep v. Keep, 68 How. 139).

      Counsel here argued that these expenses and disbursements grew out of a new contract or arrangement made since the death of Augustus F. Smith; and, therefore, defendants were not bound to contribute thereto—and cited 2 Bindley on Partnership, 1060 ; Story on Partnership, § 319 ; 1 Collyer on Part. (6 Am. ed.) 169 ; Bennet v. Buchan (61 N. Y. 225); Betts v. June (51 Ib. 279); Bacon v. Pomeroy (104 Mass. 577); Nelson v. Tanney (26 Hun, 330); Philips v. Wells (2 Ind. Rep. 324); Balsh v. Wyam (2 P. Williams, 453) ; Phene v. Gillam (5 Hare, 1); Jervis v. Wolferstan (43 Law J. Eq. 812; Perry on Trusts, § 907, &c. ; Hill on Trustees, 578) ; Downing v. Marshall (38 N. Y. 389); and distinguished Clark v. Clark (8 Paige, 152).
    IV. The judge should have made a decision, stating his conclusions of law, and directing the interlocutory judgment to be entered thereon (Code §§ 1010, 1021, 1022). And entry of the interlocutory judgment without such decision was irregular (Code § 1228). And for that reason alone the judgment should be reversed (Loeschigk v. Addison, 3 Rob. 331). The memorandum of opinion handed down by Judge O’Gorman, is not such a decision as is required by the Code, and does not authorize the entry of judgment, neither does the signature of the justice to the interlocutory judgment constitute it a decision to satisfy the requirements of the Code (Weyman v. Nat. B’way Bank, 59 How. 332 ; Adams v. Nellis, 59 Ib. 385).
    V. Even as a matter of discretion, the court ought to determine the question as to liability with respect to the Mariposa disbursements, first, in order to save the estate of a deceased person from unnecessary expense, and then, if the proof of such items should become necessary, a reference could be made for that purpose under the Code § 1015 (Camp v. Ingersoll, 86 N. Y. 433).

      Aaron Pennington Whitehead, attorney, and George A. Strong, of counsel for respondents,
    on the questions considered in the opinion, argued :—I. This is the proper and usual case for a partnership accounting under the direction of the court. The authorities lay down the rule that a partnership, a dissolution, and unsettled affairs, are all that it is necessary to show in such an action. It is a matter of course, after the dissolution of a partnership, for any partner, if he so desires, to demand an accounting, and this will be decreed by the court (Story's Equity Juris. § 672; Collyer on Partnership, § 285a; Kuhnemundt v. Haar, 46 Super. Ct. 188; Ludington v. Taft, 10 Barb. 448 ; Cheeseman v. Wiggins, 1 T. & C. 595 ; Hall v. Sherman, 11 Week. Dig. 534; Kitchen v.. Duryee, Hoffm. Ch. 538). Defendant’s counsel on the argument below had much to say upon the proposition that it was “ a part of the contract of partnership,” that when one partner dies the surviving partners shall go on and close up the business, and that until they have so closed it up (i. e., as was expressly asserted in the oral argument, until they have “ converted all its assets into cash ”), they .cannot come to a court of equity and ask for an accounting. This extraordinary proposition, unsupported as it is by authority, and contrary to the every-day experience of the profession and the courts, it is hardly worth while to discuss, for the facts in this case do not bring it within the proposition, if conceded. The counsel has overlooked the fact that the partnership involved in the case at bar was not dissolved by death of one partner, but by agreement of all, and Mr. Augustus F. Smith did not die until about six months after this dissolution.
    II. There was no error in regard to the “Mariposa item.” Defendants urged, as a subordinate proposition, that in case the court decided us to be entitled to an accounting, it should, before appointing a referee for that purpose, hear arid determine the controversy existing between the parties in regard to what is called the “Mariposa item.” This item, in and of itself, involves an accounting, inasmuch as the disbursements challenged by defendants extended over a series of years, and if the court undertook to try this question, all of these expenditures would have to be examined. Some might be legal, even though others were not. We presume that the defendants are hardly ready to stipulate that if any one item in the Mariposa matter proves to be a proper charge against them, they will admit all the rest. But if not, then it follows that the court would have to examine, and pass upon each and every item.
   Per Curiam.

We think, on the facts alleged in the complaint and admitted by the answer, that the plaintiffs were entitled to an interlocutory decree for an accounting.

The copartnership between the plaintiffs and the defendants’ testator had been dissolved for upwards of nine years by agreement of all the partners, and the fact that one of the members of the firm died after the dissolution, is no reason why a court of equity should refuse an accounting. The fact that the defendants denied liability for certain disbursements arising out of what is called the Mariposa claim, is a matter of account, and the defendants’ claim that the court should try that issue at special term is a matter resting largely in the discretion of the court, and it does not appear that that discretion was improperly exercised.

The fact that $13,000, of book accounts remain uncollected, is certainly no reason for refusing an accounting. The statute of limitations would appear to have run against these claims, and if any of them are valid they can be collected by the receiver, or they may be disposed of by him as the court shall direct.

The only question that remains is whether the interlocutory judgment as entered should be reversed because the trial judge failed to make findings of fact.

It was held in Eaton v. Wells (82 N. Y. 576), that where the judgment rendered is on the pleadings, that there was no trial'of an issue of fact, no facts to be found, and consequently no findings of fact were needed ; that the decision of the court with an order for the judgment, was a sufficient decision in writing to meet the requirement of section 1010 of the Code. There being no trial of an issue of fact, section 1022 did not apply.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Freedman, J. Sedgwick, Ch. J. Ingraham, J.

license: Public Domain

text:
    WILLIAM A. WHEELOCK, Respondent, v. MICHAEL NOONAN, Appellant.

      Mandatory injunction may go to compel performance of a duty—also to abate continuing trespass by compelling removal of that which constitutes it—Continuing trespass.—The allowing ponderous articles, placed on land under a ¡permission to do so, to remain there after revocation of the permission and demand for removal, constitutes a continuing trespass.—Mandate, possibility of inability to comply with, within time required, as found by findings, not cause for reversal.

    Defendant obtained permission from plaintiff to pile a small quantity of ' rock on certain vacant lots of his, upon the representation that he desired it to remain there but a short time only, and a promise that he would soon remove it ; under this permission, he, in the winter of 1879 and 1880, piled large boulders on the lots, covering almost their entire surface to the height of twenty or thirty feet. In the spring of 1880, plaintiff revoked his permission and required defendant to remove the rock. Since that time he has neglected and refused to remove it, although often requested so to do. By reason of the rock the property was unsalable, and plaintiff deprived of its use and enjoyment.

      Held, 1. That permitting the rock to remain after the revocation of the permission and the demand for its removal constituted a continuing trespass, and as its removal involved great and peculiar difficulties, and as the duty of removal rested on the defendant, and as it would be extremely difficult to establish loss of rental value, and as plaintiff had a right to have his lots in a condition which permitted use and enjoyment and rendered them salable, and as compensation for the continuing injury could be obtained at law only by successive actions (Uline v. N. Y. O. & H. R. R. R. Co., 101 JT. 7. 98),—a judgment for a mandatory injunction, compelling the removal of the rock, was proper.
    2. The case at bar does not fall within the principles of the case of Beck v. Allison (56 M. T. 366).
    The findings found that unless the rock was used for paving Eleventh avenue it could not be removed in less than two years, and that the Eleventh avenue was not ready to be paved ; the judgment was entered January 7, 1886, and required the rock to be removed on or before the fifteenth of the following March.

      Held, not cause for reversal, as the time might be extended.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided May 6, 1886.
    Appeal by defendant from judgment entered against him upon the decision of a judge at special term.
    The facts sufficiently appear in the opinion.

      L. Laflin Kellogg, attorney, and of counsel for appellant,
    on the questions considered in the opinion, argued : —I. Conceding all the facts to be true as the plaintiff has stated them, a court of equity has no power to grant an injunction in this case, for the reason that the damages suffered by the plaintiff can be adequately measured at law (High on Injunction, ed. 1880, 228 ; Coe v. Columbus, P. & I. R Co., 10 Ohio, 372; Coughran v. Swift, 18 Ill. 414 ; Winkler v. Winkler, 40 Ib.. 179 ; Paige v. Bell, 3 Band. 586 ; Akrell v. Selden, 1 Barb. 316 ; Sherman v. Clark, 4 Nev. 138 ; Mullen v. Jenning, 1 Stock. 192 ; Wooden v. Wooden, 2 Green. Ch. 429 ; Richard v. Kirkpatrick, 52 Cal. 433 ; Frasier v. White, 49 Md. 1 ; City of Council Bluffs v. Stewart, 51 Iowa, 385 ; Willard Eq. Juris. 276 ; Penn. Coal Co. v. Delaware, etc., 31 N. Y. 91; Jerome v. Ross, 7 Johns. Ch. 315). The complaint sets up a contract to use lots of land for a short time for the purpose of storage, upon the condition that the defendant remove the stone placed there within a short time. The only damage the plaintiff can suffer would be from the want of use of these lots. If the defendant has violated his contract by reason of failure to remove, the plaintiff upon this breach would have a right to remove the stone from the lot. His damage would be simply the cost of removal, which, in a proper case, he could recover from the defendant. This remedy is simple and plain. It is hard to see how a multiplicity of actions, as claimed by the plaintiff could arise ; but if they could, they would arise simply from the fault and neglect of' the plaintiff in removing these stones upon the breach of defendant’s contract.
    II. It is submitted that, as the stones are on the land by permission, there can be no trespass. If placed without permission, and the defendant was guilty of trespass, an injunction could not be granted (Troy & Boston Railroad Co. v. Boston, Housatonic, etc. R. R. Co., 86 N. Y. 107; New York Printing Establishing Co. v. Pitch, 1 Paige, 97 ; Hart v. Mayor, 3 Ib. 214 ; City of New York v. Mapes, 6 Johns. Ch. 46 ; Murray v. Knapp, 62 Barb. 566 ; Deklyn v. Davis, Hopk. Ch. 135 ; Strong v. Waterman, 11 Paige, 607; Akrill v. Selden, 1 Barb. 316). In a case exactly similar to the one at bar, in Pennsylvania, it was held “that an injunction would not be granted against a party for placing earth or other materials on another man’s land. The proper remedy in such a case is an action for trespass” (Mulvaney v. Kennedy, 26 Penn. 44). Equity will not interfere to restrain a trespasser simply because he is a trespasser, but only because the injury threatened is ruinous to the property and will permanently impair its future enjoyment (High on Injunctions, § 701; Echlehart v. Schader, 45 Md. 505 ; Mayer v. Groschen, 30 Ib. 436). What future enjoyment will be impaired after the stone are removed ?
    Counsel here commented on and sought to distinguish Corning v. Troy Iron & Nail Factory (40 N. Y. 206) ; Williams v. N. Y. Central R. R. Co. (16 Ib. 111); Taylor v. Christopher & Tenth Street R. R. Co. (1 Abb. N. C. 75); Calkins v. Bloomfield R. R. Co. (1 T. & C. 541); Delano v. Blizzard (7 Hun, 66); Engle v. Owen (3 Duer, 15). In Auburn, etc. Co. v. Douglas (12 Barb. 553), the judgment was reversed in 9 N. Y. 444.
    III. An injunction should not be granted for fear of a multiplicity of actions. Such a claim in this case, it seems, is idle. There can be one action at law, to wit: damages estimated at the cost of the removal of the stone. After the removal what other damages could accrue? The plaintiff would have his land. The stone would not be there. No further injury could accrue. In any event, the general rule requires that an action at law should first be brought. This was established in Livingston v. Livingston (6 Johns. 497). The court of appeals affirmed the rule in Troy & Boston R. R. v. Boston & Housatonic R. R. Co. (86 N. Y. 107). But to warrant the interference in such cases (for multiplicity of suits) there must be different persons assailing the same, and the particulars upon which the relief is granted have no application to a repetition of the same trespass by one and the same person, the case being susceptible of compensation and damages (High on Injunctions, § 700 ; Hatcher v. Hampton, 7 Georgia, 30). In this case it is seen that not only could there be no multiplicity of action, 1st., because the damage could not be continuing ; 2d., that no suit had previously been brought; 3d., that there could be but one person to sue, to wit, the plaintiff.
    IV. A court of equity would have no power to enforce a contract for personal services, and this is just the contract that the plaintiff asks to have enforced (Willard's Equity, 277 ; Haight v. Bedgely, 11 Barb. 501; Hamblin v. Dunnefred, 2 Ed. Ch. 522; Sanquirico v. Benedetti, 1 Barb. 315 ; Kemball v. Dean, 6 Sim. 333 ; Flint v. Brandon, 8 Ves. 163; South Wales Railway Co. v. Wythes, 5 De G., M. & G. 880 ; Fallon v. Railroad Co., 1 Dill. [C. C.] 121; Booth v. Pollard, 4 Y. & C. 61; High on Injunctions, § 728 p. 79 ; Collins v. Plum, 16 Vesey, 454 ; Pollard v. Clinton, 1 K. & J. 462; Wheatley v. Westminster, etc. Coal Co., L. R. 9 Eq. 538 ; Heathcote v. North Stafford Railway Co., 20 L. J. [N. S.] 82, and cases there cited ; Ford v. Jermon, 6 Ohio [.Venn.] 6 ; 5 Wait's Actions & Defenses, 768 ; Pickering v. Bishop of Ely, 2 Y. & Col. 249 ; Stoker v. Brocklebank, 3 Mac. & G. 250 ; Hair v. Himalaya Tea Co., 1 Eq. 411; Richmond v. Dubuque, etc. R. R. Co., 33 Iowa, 480; Chinnock v. Sainsbury, 30 L. J. [N. S.] Ch. 409 ; Acker v. Phœnix, 4 Paige, 305). A court of equity will not enforce the specific performance of an agreement contained in a lease upon the part of a lessor to repair damages caused by fire (Beck v. Allison, 56 N. Y. 367 ; 15 Am. Rep. 430).
    V. If on no other ground, this appeal should be successful in this court, in modifying the decree.

      Martin & Smith, attorneys, and George A. Strong, of counsel for respondent,
    on the questions considered in the opinion, argued :—I. If defendant abused the permission given to him, exceeding it both as to the quantity of rock placed on the land and the length of time they remained, he made himself a trespasser. Still further, if he has kept this mass of rock on the lots after the plaintiff demanded its removal, then he has become a wrongdoer, even though it should be held that up to that time his conduct had been lawful. That was long since decided by this court, and the decision was expressly approved and followed by the court of appeals (Jamieson v. Milleman, 3 Duer, 255 ; Babcock v. Utter, 1 Keyes, 403).
    II. The cases are numerous which hold that a mandatory injunction will issue to redress such a wrong. The trespass is a continuing one, and where a defendant has •committed an unlawful act, and the nature of the injury .requires such relief, the courts have not hesitated to command him to take affirmative measures to undo the "wrong which he has done (Corning v. Troy Factory, 40 N. Y. 191; Eagle v. Owen, 3 Duer, 15 ; Prime v. 23d St. R. R. Co., 1 Abb. N. C. 63; Calkins v. Bloomfield, &c. Co., 1 T. & C. 541; Delany v. Blizzard, 7 Hun, 66; Auburn, &c. Co. v. Douglass, 12 Barb. 553 ; Martyr v. Lawrence, 2 DeG., J. & S. 266 ; Bankin v. Huskisson, 4 Simons, 13 ; 6 E. Ch. Rep. 7 ; Spencer v. London, &c. Ry. Co., 8 Simons, 193; Robinson v. Lord Byron, 1 Bro. Ch. Rep. 588). It.is clear “that injunctions in substance mandatory, though in form merely prohibitory, have been and may be granted by the court” (Junction Ry. Co.
      v. Clarence Ry. Co., 1 Coll. 521). Defendant’s counsel urged in his brief at special term that equitable relief could not be granted, because plaintiff had an adequate remedy at law. This claim was based on the proposition that plaintiff was bound to remove the stone and sue the defendant for the cost of removal, and his omission to adopt this course was actually termed a “fault and neglect” on his part. The only case in which this argument seems ever to have been advanced is an old one, but this fact is perhaps accounted for by the disfavor with which the argument was then received (Beach v. Crain, 2 N. Y. 97). Certainly it is a novel idea that when defendant disregarded his duty to take these rocks away, it then became plaintiff’s duty, for defendant’s benefit, to undertake the task. On the contrary, the foregoing authorities show that it was a continuing trespass for defendant to leave the rock there, that a continuing trespass necessitates a multiplicity of actions at law, and that the necessity for a multiplicity of actions furnishes one of the strongest grounds for the interposition of equity. Defendant’s argument that plaintiff could remove the rock and then sue defendant for the expense of removal would have applied with precisely the same force to every one of the above cases, where a mandatory injunction was actually granted. It cannot, therefore, be any answer to the prayer for such an injunction. The distinction is very clear between a single trespass, with which equity will not interfere, and a continuing trespass, or repeated trespasses, which bring a case within equitable jurisdiction (Story’s Eq. Jur. [10th ed.] vol. 2, § 928 ; Meyer v. Phillips, 97 N. Y. 491). We may instance, while upon this point, the elevated railroad cases. They occasioned, the court of appeals said, “a permanent and continuing injury ” to property, and an injunction is therefore the proper remedy (Story v. N. Y. El. R. R. Co., 90 N. Y. 179). This rule was laid down in a case where the damages could be ascertained, and the issue of the injunction was by the direction of the court to be suspended, to allow these damages to be ascertained and paid.
    III. Plaintiff is entitled to a decree for specific performance. We submit that a court of equity may properly decree the specific performance of the agreement to remove (Jones v. Seligman, 81 N. Y. 190 ; Countryman v. Deck, 13 Abb. N. C. 110 ; McLallan v. Jones, 20 N. Y. 166 ; Malins v. Brown, 4 Ib. 403 ; Bennett v. Abrams, 41 Barb. 619 ; Story Eq. Jur. [10th ed.] § 146). Great stress was laid by defendant’s counsel upon the case of Beck v. Allison (56 N. Y. 366). But that case is explicitly based upon the ground that a court of equity has no proper machinery for supervising so complicated a matter as specific performance of an agreement to rebuild. It could not' enter into the question of the proper extent and quality of repairs. It was the same court which after-wards compelled specific performance of the duty of building the fence, seeing that there could be no difficulty in supervising the execution of such a decree.
    IV. Plaintiff has no adequate remedy at law, because there is no way of measuring the damages sustained by reason of the presence of the rock on his land. Defendant’s ' whole contention rests on the proposition, that plaintiff had “an appropriate and adequate ” remedy at law. And this proposition depends upon another, viz.: that it was plaintiff’s “duty” first to remove this rock himself and then sue defendant at law for the expense of so doing. The reverse of this has been reached (Beach v. Crain, 2 N. Y. 91). A moment’s thought also will show that the doctrine contended for by defendant cannot coexist with one as old as the law itself, viz.: that of continuing trespass. Throwing a heap of stones on the land of another person is given in a leading text book as an instance of a continuing trespass, which gives a right to' sue de die in diem (Addison on torts [Banks’ Ed.], vol. 1, 332).
   Freedman, J.

This is an appeal by the defendant from a judgment enjoining him from keeping or maintaining any rock which he had placed there, upon the plaintiff’s premises and directing him to remove said rock by a time specified.

The complaint alleges that in or about the year 1880, the defendant, who then held a contract with the city of New York to open Eleventh avenue, applied to the plaintiff, the owner of eight vacant lots bounded on one side by Eleventh avenue, for permission to pile a small quantity of rock temporarily upon said lots ; that in the course of such application he represented that he desired to place only a small quantity thereon and for a short time only, and promised that he would soon remove it again, as he expected to sell it for macadamizing purposes; that upon the faith of such representations and such promises the plaintiff gave the permission requested; that thereupon the defendant, without plaintiff’s knowledge, piled rock, consisting largely of huge boulders, on said land to the height of twenty or thirty feet and so as to cover almost the entire surface of the eight lots ; that since that time the defendant, though often requested to remove said rock, has neglected and refused to move the same, and that by reason of the aforesaid premises the lots have become utterly unsalable and the plaintiff has been deprived of their use and enjoyment. The prayer is for judgment enjoining and restraining the defendant from keeping said rock any longer upon the lots described, and directing and requiring him, within such time as shall be fixed by the court, to remove all of the said rock from the said lots.

The evidence leaves no doubt that the defendant greatly abused the permission given to him, and that the plaintiff substantially established all the material allegations of his complaint.

It is claimed, however, and this is really the only point presented by defendant’s appeal which requires serious consideration, that conceding all the facts to be true as above stated, a court of equity will not grant a mandatory injunction because the plaintiff has a remedy at law.

The question therefore arises, what remedy the plaintiff would have in an action at law.

The defendant claims that his omission and refusal to remove the rock, although wrongful, constitute but a mere breach of contract, and that the measure of damages is the cost of the removal of the rock.

The answer to that is that the duty of removing the rock does no more rest upon the plaintiff, than the duty of rebuilding or replacing the gate rested upon Crain in the case of Beach v. Crain (2 N. Y. 86, 97).

Moreover the evidence shows that there are great and peculiar difficulties to be overcome in the removal of the particular rock complained of, unless an immediate use or market for it can be found for account of contractors in the vicinity.

And, finally, it is to be considered that defendant’s abuse of the permission granted to him, and his subsequent refusal to remove the rock when requested, and keeping it there after that, amount to a continuing trespass upon plaintiff’s land. In this aspect of the case, the plaintiff can only bring successive actions for the loss of the rental value of his lots, but he cannot, in a common law action, recover once for all time, the total diminution of the fee value of the lots, because the trespass is capable of being discontinued, and the law will not presume that it will always continue. This has been expressly decided in Uline v. N. Y. C. & H. R. R. R. Co. (101 N. Y. 98).

These considerations show sufficiently that the plaintiff, upon the peculiar circumstances of this case, has no adequate remedy at law. A further consideration is that it would be extremely difficult to establish loss of rental value in vacant losts situated as plaintiff’s lots are, and that the plaintiff has a right to have his lots in a condition which permits use and improvement and renders them salable.

For the reasons stated, and the additional reason that equity will, interpose to prevent a multiplicity of suits for damages, the case is brought directly within the decision of Corning v. Troy Iron & Nail Factory (40 N. Y. 191).

The judgment should be affirmed, with costs.

Sedgwick, Ch. J.

(concurring.)—In my opinion, the court will have no difficulty in supervising the performance by defendant of his agreement to remove the rock from plaintiff’s land. It seems to me, that none of the reasons that prevailed in Beck v. Allison (56 N. Y. 366), apply to such a simple work. At least, the defendant will know exactly what is to de done. He is to use the means he used in placing the rock upon the land.

It seems to me that it is not the duty of the plaintiff to create a condition of things for the purpose of getting a cause of action that may indemnify him, which, if he had it, would be a reason for his not being entitled to an equitable remedy. It would be at least a hardship to a party grievously wronged, to be required at the instance of the wrongdoer, to do, at his own expense, what the wrongdoer promised to do, in order to ascertain what damages could be recovered in a legal action. In a case like this, if a wrongdoer does so much harm that the injured party has not the means of remedying it, then it is safe to injure a man without means.

The defendant suggests that there is some inconsistency in the judgment requiring him to accomplish within two months, what by 'the findings, will take two years to accomplish. The time for performance may be extended. This is no reason for reversing the judgment wholly. I concur with Judge Freedman, that judgment should be affirmed, with costs.

Ingraham, J.

(dissenting).—I am unable to concur with the majority of the court that the judgment in this action should be affirmed.

It is not claimed by. this plaintiff that the defendant entered upon the premises, placed any stones upon them, or did anything to them after the notice given to him in the spring of 1880, that the license to place rock upon the premises had been revoked ; but the defendant appears then to have abandoned possession of the premises, leaving the rock placed there before that time. The court refused to find that defendant was in possession at the time of the trial.

There is no evidence that would justify the court in holding that the defendant committed a trespass at any time. A trespass was not committed when the rock was placed upon the property, for defendant had, under the license, authority to put it there, which authority continued down to the spring of 1880. After that, defendant did not enter on the premises.

In Miller v. The Auburn & S. R. R. Co. (6 Hill, 61), the court held that a license until revoked, protects the defendant against an action for a wrong. “Indeed, there cannot, in the nature of things, be any legal wrong until the license is countermanded.” (See also Pierrepoint v. Barnard, 6 N. Y. 279).

That the defendant had broken his contract or agreement with the plaintiff is established, and for such breach plaintiff has an action at law for the damages caused thereby. The plaintiff claims «that a trespass was committed when the defendant left the rock upon the premises after the license was revoked, and failed to keep his agreement to remove it, and I understand the majority of the court sustain him in such claim. It appears to me, however, that this was a breach of contract, not a trespass. In Engle v. Owen (3 Duer, 15), relied on by plaintiff, the judgment appealed from required the defendant to rebuild and close up a doorway, so as to make the same equal to the other parts of the wall, under penalty of being deemed guilty of contempt of court. On appeal, however, this judgment was modified so as io prohibit future alterations only, the court saying, “If the alterations made can be shown to be an injury to the plaintiff, he has a perfect remedy by action to recover the damage.”

Beach v. Crain (2 N. Y. 86) was an appeal from a judgment of a justice of the peace for the breach of a covenant contained in an agreement under seal.

In no case that has been cited, or that I have been able to find, has it been held that a trespass was committed because of the failure to remove an obstruction placed upon property under a license ; and I am of the opinion that under such circumstances no trespass is committed. The jurisdiction of a court of equity to restrain the commission of a trespass only attaches, however, when some further necessity for such interference appears than the trespass. It must either appear that the plaintiff has not an adequate remedy at law, or that the interposition of a court of equity is necessary to prevent a multiplicity of suits.

In N. Y. Printing, &c. Establishment v. Pitch (1 Paige, 99), the chancellor said, There must be something particular in the case to sustain the jurisdiction of the court, so as to bring the injury under ihe head of quieting the possession, or make out a case of irreparable mischief, or the value of the inheritance must be put in jeopardy by the continuance of the trespass.”

In this case neither of these conditions exists. The plaintiff has a perfect remedy at law, and all the damage sustained by him can be recovered in one action.

Plaintiff is in possession of his property ; the expenses of the removal of the rock can be ascertained with reasonable certainty, and that amount, together with the value of the use of the property from the time of the revocation of the license to the time at which the stones can be removed, will be full compensation to the plaintiff for all damage that he has sustained. No other or further action would be needed to place the plaintiff in exactly the same position in which he was before the stones were placed upon his premises. Nothing prevents the plaintiff from having the rock removed, and after such removal and his recovery of the amount of such damage, plaintiff’s remedy is complete.

The case of Meyer v. Phillips (97 N. Y. 485), and cases of that nature are not authorities for the judgment in this case. There, the defendants were doing acts, each of which was a new trespass, and the court said, “This is not a case where the defendants threaten only to commit a single trespass, but they threaten and claim the right to repeat the trespasses every year.”

The necessity of equitable interference arises in such a case from the fact that an acquiescence by plaintiff in the wrongful act must ripen into a right by prescription.

Nor can the action be sustained as an action for the specific performance of a contract.

In Beck v. Allison. (56 N. Y. 366), the court refused to enforce a specific performance of a covenant to rebuild, holding that the execution of contracts of the kind will be found very difficult, if not impracticable, while a remedy at law would in nearly if not in all cases, afford full redress for the injury; and what is said in that case applies to the case at bar.

The case of Jones v. Seligman (81 N. Y. 190), was an action to compel a railroad company to maintain fences on its own land. It was clearly impracticable for the plaintiff to build the fences and maintain the crossings on the land of the railroad company.

I am of the opinion, therefore, that plaintiff failed to maintain a cause of action in equity, and the complaint should have been dismissed.

The trial judge found as a fact that unless the stones were used for paving Eleventh avenue they could not be removed in less than two years, and yet the judgment requires that they be removed in about sixty days.

This is, I think, the first case in which a court of equity has required an act which it finds will take two years to perform, to be performed in sixty days.