Plaintiff has moved, several months after joinder of issue and just prior to a scheduled pretrial conference, for leave to file both an amendment to the complaint and a supplemental complaint.
Defendant, although expressing no basic objection to the granting of the leave sought, contends that since the equitable phase of the case has become moot by reason of the circumstances hereinafter detailed, it is now entitled to demand a trial by jury; particularly if the complaint is amended and supplemented. Plaintiff disagrees.
At the time the complaint was filed, plaintiff and defendant occupied neighboring parcels of vacant land at Port Newark. Plaintiff used its land for the open storage and handling of steel, iron and other metal products. Defendant used its land for the storage and handling of sulphur, most of which arrived by ships which docked at nearby piers.
The complaint alleged that the sulphur was transported and piled in unprotected mounds so that sulphur powder and particles were blown upon plaintiff's land and by combination with oxygen and moisture from the air formed sulphurous acid which corroded the steel and other metal products which plaintiff stored there. In addition, it was alleged, the sulphur particles and powder prevented plaintiff's employees from performing their duties effectively.
Charging that defendant threatened to continue the conduct complained of, alleged to constitute negligence, as well as the maintenance of a nuisance, the complaint, filed in the Chancery Division, demanded:
"* * * judgment against the defendant as follows:
"1. Restraining and enjoining defendant, its officers, agents and employees from creating or maintaining any unprotected mound or mounds of sulphur and sulphur powder on its leased premises at Port Newark, New Jersey, or permitting such sulphur powder to be blown about by air currents and deposited onto the property of the plaintiff as described in the complaint and from removing the same in uncovered or unprotected trucks or other conveyances and from otherwise continuing the nuisance described in the foregoing complaint.
"2. For damages in the amount of $500,000.00.
Defendant's answer, the filing of a third-party complaint against its insurance carrier and an answer by the third-party defendant, and listing of the case for pretrial conference followed in due course. No demand for trial by jury (R.R. 4:39-1) was filed; both plaintiff and defendant agree that since the primary relief sought by the complaint was equitable, an injunction, there was no right to a jury trial on the incidental legal issue of money damages. Steiner v. Stein , 2 N.J. 367 (1949); Garrou v. Teaneck Tryon Co. , 11 N.J. 294 (1953); cf. Walden v. Pines Lake Land Co. , 126 N.J. Eq. 249 (E. & A. 1939).
But it now appears from concession of all counsel, although no affidavits accompany plaintiff's notice of motion (cf. Schnitzer & Wildstein, N.J. Rules Serv. , A IV-411, 375), that equitable relief is no longer necessary nor appropriate. Some six months after the action was instituted, defendant vacated its premises at Port Newark; sulphur is no longer stored there and the alleged nuisance no longer exists. The prayer ...