Black v. Vanderbilt , 74 N.Y.S. 1095 ( 1902 )

O’Brien, J.:

Reading the allegations of the complaint in the light of the prayer for relief, there can be no doubt that what the plaintiff sought was equitable relief in an equitable action. Were there any such doubt, it would be dispelled by the statement in the brief of the- plaintiff -on this appeal that “ the amended complaint states a good cause of action for equitable relief, and upon the allegations contained in the amended complaint the plaintiff is entitled to maintain an action for an accounting.”

It is true that in a subsequent part of the: brief is the contention that if, upon the -facts stated, the plaintiff was entitled to any redress, legal or equitable, it was error for the court to sustain the demurrer. This latter proposition for which the appellant contends has been applied in cases where an answer has been interposed and thereafter the sufficiency of the complaint was questioned. We can find, however, no authority for the proposition that where a suit is brought in equity for equitable relief, and the defendant demurs, it then becomes, the duty of the court, where the facts would not warrant equitable redress, to hold that the demurrer is bad because it might be concluded, itpon. some construction of the allegations of the complaint, that the plaintiff has stated certain facts which, disregarding all the others^ might convert the suit into an action at law. It is true that a party is not to be turned out of court merely-because he has failed to demand the precise remedy to which he is entitled,-and that he may. state in this complaint the facts upon which he relies in such a manner as to entitle him either to legal or equitable relief. But here, no legal redress is demanded, and it conclusively, appears that the complaint was framed for equitable relief alone.

In Swart v. Boughton (35 Hun, 281) it was said: “ Where all of the allegations of the complaint are made for the purpose of procuring equitable relief, and where equitable relief alone is asked for, the complaint cannot be sustained for legal redress where no answer has been interposed,” .That case was followed by this court in Cody v. First Nat. Bank (63 App. Div. 199); and in view, of the very full discussion there of the exact question here presented for consideration, it- is unnecessary to add to what was therein said. •

Regarding the question as settled, therefore, so far as this court, is concerned, we think that the disposition made by the Special Term in sustaining the demurrer was right. The interlocutory judgment appealed from should accordingly be affirmed, with costs, with leave, to plaintiff within twenty days to amend the complaint upon pay* ment of costs in this court and in the court below.

Van Bbunt, P. J., Pattebson and McLaughlin, JJ., concurred; Laughlin, J., dissented.