Hun.] FOURTH DEPARTMENT, FEBRUARY TERM, 1895. * nouncing his decision, according to the proofs presented and principles of equity, the parties were entitled to by the case presented. He seems to have ascertained the amount of principal and interest due upon the mortgage upon the basis of its being valid to the extent of $4,500, and having ascertained that amount, he then proceeded to apply upon the evidence produced before him in this case (and perhaps in the other action brought to redeem from the mortgage which was tried at the same time before him); and upon such evidence reached the conclusion that "the said sum of $4,500, with interest thereon, was all paid prior to January 1, 1894." By adopting such course he manifestly received evidence of facts and circumstances of the parties beyond the exact limits of the issues originally framed between the parties. After a sale of the premises upon a decree of foreclosure the plaintiffs took possession and received the rents and profits of the land covered by the mortgage, and equitably they should be charged with the amount thereof, and upon an ascertainment of the amount received it was proper to state the amount of the principal and accrued interest, and upon such amount to apply the rents received on the mortgage in accordance with the findings of the referee, taking as a basis $4,500 and interest thereon, and the plaintiffs, if anything remained due upon the mortgage, were equitably entitled to a decree establishing that amount and a provision to the effect that, unless the same should be paid, the defendants' right therein should be foreclosed. (Ruckman v. Astor, 9 Paige, 517.) Plaintiffs' character as a mortgagee in possession could not be divested until the application of the rents had been made by the court in satisfaction of the mortgage. (Hubbell v. Moulson, 53 N. Y. 225.) (2) We have assumed that the evidence warranted, as we think it did, the findings of fact made by the referee to the effect that the mortgage was valid to the extent of $4,500 and interest thereon. (3) It is contended by the appellants that there were certain admissions in the answer which precluded the defendants from giving proof of the circumstances relating to the alleged usury in the mortgage. The course of the trial seems to have assumed that the questions relating to the inception of the mortgage were raised by the pleadings. Under such circumstances we think the plaintiffs *See ante, page 49.- [REP. FOURTH DEPARTMENT, FEBRUARY TERM, 1895. [Vol. 85. are too late in their objection. The answers were very broad, and warranted the admission of all the facts and circumstances that were developed relating to the alleged usury in the mortgage. It is difficult to see that the plaintiffs in that regard have been surprised or misled by the course of the trial. The course of the trial is quite different from that pursued in Dunham v. Cudlipp (94 N. Y. 129). (4) Several exceptions were taken during the progress of the trial to which attention has been given, but it is not believed that they present prejudicial error which require us to interfere. This is an equity action. (See opinion of Cross v. Smith at this term.*) (5) According to the course of the trial and the findings made by the referee, it is quite apparent that the referee finally reached the conclusion to dismiss the complaint on the ground that the bond and mortgage, so far as they were valid, had been paid by the rents received by the plaintiffs of the premises. It appears by the case that during the hearing before the referee the trial" was suspended by consent of the parties, and the action in this court brought by the defendant Mary J. Cross against the plaintiffs herein, for the redemption of said mortgaged premises, on the ground that the mortgage had been fully paid, and which case is now on appeal to the General Term, was proceeded with before the same referee who tried this action." The case then continues to state, viz.: "On the trial of said redemption action the plaintiffs in that case gave evidence before the referee from which the referee found that between May 1, 1878, and March 1, 1894, while the plaintiffs in this action were in possession of the said mortgaged premises, they received in rents from the same the sum of $12,477.04, and the defendants in that action the plaintiffs in this gave evidence from which the referee found that while the said plaintiffs were in possession of said mortgaged premises they paid out for the benefit of the saine the sum of $3,951.10. The amounts so found by the referee as having been received and disbursed are fully set out in finding nineteen of his said report, which is here referred to." After the parties had adopted such a course for the trial of this action, and, in pursuance thereof, it had been made to appear by evidence which warranted the finding that "the said sum of $4,500, with interest thereon, was all paid prior to January 1st, 1894," we *See ante, page 49. Hun.] FOURTH DEPARTMENT, FEBRUARY TERM, 1895. think the discretion exercised by the referee in respect to the costs was erroneous. After reaching such conclusions he might properly have dismissed the complaint, without costs, and we are of the opinion that he ought not to have awarded costs in favor of the defendants. We think the judgment should be modied by striking therefrom the costs awarded against plaintiffs, and, as modified, affirmed, without costs of this appeal to either party. MARTIN and MERWIN, JJ., concurred. Judgment modified by striking therefrom the costs awarded against the plaintiffs, and, as modified, affirmed, without costs of the appeal to either party. HERMAN F. INDERLIED and Another, Appellants, v. NICHOLAS Damages to what extent recoverable in legal and equitable actions-judgment therefor in an equity action. - when a bar to a recovery in a subsequent action at law. The damages recoverable in an action at law are limited to such as occurred prior to the commencement thereof, but in an action in equity, where the plaintiffs seek to obtain a permanent injunction forbidding the commission by the defendants of certain alleged wrongful acts and trespasses, and allege damages as incidental to the equity relief, the plaintiffs are entitled, under a proper state of facts, to recover all damages sustained up to the time of the rendering of the decision made in that action, upon which judgment was entered, by reason of the wrongful acts of the defendants. They are entitled to recover such damages as would necessarily and naturally result, or be incurred, from the injury complained of, The judgment recovered in such action would be a bar to the maintenance of an action at law to recover damages sustained by the plaintiffs since the making of the decree in the prior action by reason of the alleged wrongful acts of the defendants, if such acts were done prior to the making of the decree in the first action. APPEAL by the plaintiffs, Herman F. Inderlied and another, from a judgment of the Supreme Court in favor of the defendant Nicholas Whaley, entered in the office of the clerk of the county of Delaware on the 9th day of January, 1894, upon the verdict of a jury dismissing the plaintiffs' complaint upon the merits, rendered 85 63 156a 658 FOURTH DEPARTMENT, FEBRUARY TERM, 1895. [Vol. 85. by direction of the court at the Delaware Circuit, and also from an order made on the 9th day of January, 1894, and entered in said clerk's office, denying the plaintiffs' motion for a new trial made upon the minutes. Prior to April, 1886, plaintiffs were the proprietors of a large manufactory of wood chemicals at Rock Rift, Delaware county, and had acquired the right to pond, and, by means of flumes and ditches, convey to their manufactory for use therein the waters of a stream known as Chace's brook, which is a small mountain stream about two miles in length and flows down a narrow valley through lands owned by several different parties. In the fall of 1885 the defendants commenced operating a steam saw mill upon the banks of said stream above the pond of the plaintiffs, and from the defendants' saw mill the sawdust and debris ran into the waters of Chace brook and ran down into plaintiffs' pond and thus into their factory, causing them damage. In the month of April, 1886, plaintiffs commenced an action on the equity side of the court, against defendants, alleging that the defendants were running sawdust into the stream, causing them injury, and asked by way of relief a temporary injunction, and also a permanent injunction restraining the defendants from depositing sawdust in the stream. preliminary injunction was granted which restrained the defendants from putting any sawdust in the stream thereafter until the further order of the court. That action was tried at Special Term and resulted in findings of fact and law in favor of the plaintiffs therein and awarding the plaintiffs a perpetual injunction restraining the defendants from depositing sawdust, chips and debris from said saw mill into said brook; and in the 8th finding of fact in that case it was found: "That by reason of defendants depositing said sawdust, etc., in said brook as aforesaid, the plaintiffs have suffered great and irreparable damage and loss.” In the complaint in this action it is alleged "That in an action in this court wherein said Inderlied, Son & Co., were plaintiffs, and these defendants were defendants, it was found, adjudged, determined and decreed that the defendants herein had wrongfully done all the acts herein alleged, and wrongfully caused all the damages and loss herein set forth." Upon the trial of this action the pleadings and findings made by the court in the former action, as well as the judg Hun.] FOURTH DEPARTMENT, FEBRUARY TERM, 1895. ment thereon, were introduced in evidence. In the course of the opening in this case the plaintiffs' counsel said: "We shall not offer proof that the defendants have run any sawdust into the stream since the temporary injunction was served in the former action." The plaintiffs' counsel asked the court to "rule and hold that the plaintiffs are not precluded from showing damages in this action which arose after the commencement of the former action in equity." The court declined to make such ruling and the plaintiffs took an exception. Thereupon the plaintiffs' counsel said: "The plaintiffs do not claim that the defendants ran any sawdust into the stream after the decision of the court, but do claim that sawdust was run into the stream before the decision of the equity action - has operated to injure the plaintiffs since." Thereupon the court observed "That no evidence can be given of damages flowing from acts found in the equity action to have been committed by the defendants, but any damage flowing from act of defendants constituting a breach of the permanent injunction granted in that action may be given in evidence and recovered for in this action." To that holding the counsel for the plaintiffs took an exception. Thereupon the plaintiffs' counsel asked the court to "hold that although no act has been done by the defendants since the trial of the equity case in violation of the injunction, by running sawdust from the mill into the creek, that the plaintiffs may be entitled to recover for acts done before either injunction, by which sawdust was placed in the creek which afterwards, from its lodging in the dam and the action of the water, injured the plaintiffs." The court declined and the plaintiffs excepted. A motion was made for a dismissal of the complaint and granted and an exception was taken, and thereupon the court directed the jury to find for the defendants, and plaintiffs excepted, and moved for a new trial on the minutes, which was den ed. Marvins & Hanford, for the appellants. Levi H. Brown, for the respondent. HARDIN, P. J.: Plaintiffs' former action was brought on the equity side of the court and sustained because of the alleged wrongs and wrongful HUN-VOL. LXXXV. |