Lang v. Thacher , 62 N.Y.S. 956 ( 1900 )

Merwin, J.:

According to the complaint the action is in equity to obtain the actual delivery of certain specific chattels. That such an action is maintainable in equity is well settled. (2 Story Eq. Juris. § 708 et seq) The right to obtain such delivery may be based on an equity of redemption, or on a right to a specific performance of an agreement of sale. (2 Story Eq. Juris. § 710; 1 Pom. Eq. Juris. § 164; 5 Am. & Eng. Ency. of Law [2d ed.], 1003.) In either case, the action for that purpose is based on contract.

The subject-matter of the present action is the specific articles, the actual delivery of which the plaintiff claims. The cause, of action is the equitable right, which the plaintiff claims to have, to enforce such actual delivery upon payment of a certain sum. Whether this sum shall be deemed to represent the amount of the indebtedness from plaintiff to defendant for which the property is held as security, or to represent the purchase price as upon an agreement to sell, the controversy is jiractically the same, involving the same continuous transactions over the same subject-matter, the legal title of which is in the defendant. . The equitable claim of ownership and right to actual delivery is but a single cause of action although relief may be given upon different grounds.

Clearly there is no misjoinder of causes of action unless, as claimed by the defendant, there is also stated in the complaint a cause of action in tort for the conversion of .the property and for damages for withholding the same.

It is very manifest that the main object of the action is to obtain actual delivery. This would not be accomplished by an action for conversion. The intention to set up a cause of action on that basis is not apparent. The demand for relief for the value of the property is in the contingency of inability to obtain actual delivery. The allegation in the complaint of wrongful detention may be construed as referring to the violation by defendant of his agreements. (Austin v. Rawdon, 44 N. Y. 63 ; Vilmar v. Schall, 61 id. 564.) The allegation that the plaintiff has been damaged by the failure of the defendant to deliver the property is evidently made in view of inci-. dental relief that may be granted in the equitable action, and does not operate to characterize the action as one. for conversion. A court of equity having obtained jurisdiction will give full relief according to the exigencies of the case. (Valentine v. Richardt, 126 N. Y. 272, 277.)

The complaint should not, I think, be construed as setting up a cause of action for conversion. It follows that the demurrer was properly overruled.

All concurred.

Judgment affirmed, with costs, with leave to defendant to answer upon payment of costs of appeal and of demurrer within twenty days from service of copy of this order.