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Nystrom v. Pennycook

Decided: February 11, 1954.


Jayne, Francis and Clapp. The opinion of the court was delivered by Clapp, S.j.a.d.


[29 NJSuper Page 458] Defendants appeal from a mandatory injunctive order issued on motion after plaintiffs had secured judgment in an action for possession of land.

The action was in the Superior Court, Law Division. As appears by the complaint and pretrial order, plaintiffs sued not only for possession of a six-inch strip of land upon which defendants had built a retaining wall, but also for the removal of the wall. Defendants in the answer and pretrial order claimed an estoppel, asserting that plaintiffs had stood by, without taking action, while the wall was being built upon that strip, and indeed, that plaintiffs had acquiesced therein.

Testimony upon the estoppel was put in at the trial, but the court refused to submit the matter to the jury, holding in its charge that the circumstances adduced "do not spell estoppel." To this ruling, defendants objected before the jury retired. The verdict was for the plaintiffs on the single question left to the jury, namely, as to the right to possession. In the judgment entered thereon, nothing was said upon the matter of estoppel, nor upon the demand to have the wall removed, the latter matter not having been raised except in the complaint and pretrial order. No appeal was taken from the judgment.

Three months after judgment, plaintiffs secured a writ of possession, and a month later, on motion entitled in the action for possession, obtained the mandatory injunctive order, appealed from, by which defendants were required to remove the wall. Hirschberg v. Flusser , 87 N.J. Eq. 588 (Ch. 1917).

Defendants urge that "an action for possession of land and an action for a mandatory injunction to restrain a continuing trespass are two distinct causes of action." For this and other reasons, they say -- and this is the matter we are to deal with principally here -- the mandatory injunction may not issue on motion after judgment as though it were an incident thereof.

Defendants break up the circumstances here into two matters, first, their wrongful entry on the property, upon which is predicated the action for possession, and, second, their erection of the wall, upon which is predicated the claim to the mandatory injunction. We need not here

determine whether these two matters gave rise to but a single cause of action, the second matter (the erection of the wall) being simply the manner by which the wrongful entry was effected; and whether, if an attempt had been made to split that cause of action and sue separately upon the first matter, a judgment thereon would preclude an independent action on the second matter. Hahl v. Sugo , 169 N.Y. 109, 62 N.E. 135, 61 L.R.A. 226 (Ct. App. 1901); Slater v. Shell Oil Co. , 58 Cal. App. 2 d 864, 137 P. 2 d 713 (D. Ct. App. 1943); McCaffrey v. Wiley , 103 Cal. App. 2 d 621, 230 P. 2 d 152 (D. Ct. App. 1951); cf. R.R. 4:79-7; cf. in general, Restatement of Judgments , ยงยง 62, 66.

Our concern merely is whether the mandatory injunction may issue on motion after the judgment for possession. The Superior Court has an ample authority, through the grant of auxiliary relief, to carry its judgments into full execution, even though like relief could be had in a separate action. By such means as these the law obviates the delays and expense of such an action. Beatty v. De Forest , 27 N.J. Eq. 482 (E. & A. 1875). So, under the general powers of the former Court of Chancery and under R.S. 2:29-63, that court, on motion in the cause, subsequent to the decree, could issue its injunction and grant other relief in the enforcement of its decree. Schenck v. Conover , 13 N.J. Eq. 220 (Ch. 1860); King v. Wilson , 54 N.J. Eq. 247 (Ch. 1896). The statute added nothing to the authority of the Superior Court, and the failure of the Legislature to carry it over into Title 2 A of the Revised Statutes , upon the repeal of Title 2 (L. 1951, c. 344), does not affect the matter.

In the effectuation of these principles and with a view to the practicalities of the matter, the law in this State does not (as defendants argue) require the claim to auxiliary relief to have been disposed of at the trial or final hearing, even though this might have been done under the circumstances. But cf. Hahl v. Sugo, supra , as to the law of New York concerning a motion for such relief.

Under our integrated system, law as well as equity delights to do justice and not by halves. The limits of this auxiliary authority, or, rather, practice, seem not to have been marked off. Nor need we do so here. But where, as here, the auxiliary relief is but incidental to and a parcel of the relief already given, there can be no question on the matter; the injunction here ...

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