Witherbee v. Meyer , 84 Hun 146 ( 1895 )

HERRICK, J.

This is an appeal from a judgment entered upon

the report of a referee, awarding a judgment in favor of the plaintiffs for the specific performance of a contract to furnish waterpower, and for damages in the sum of $3,119.50 for withholding the same. The appellant claims that the case is not one for a specific performance; that the plaintiffs have an adequate remedy at law. It is possible that the appellant’s contention is true, but it comes too late. He neither raised that question by his answer, nor can I discover by an examination of the record that it was raised during the progress of the trial. “It appears to be settled by very general concurrence of authority that a defendant cannot, when sued in equity, avail himself of a defense that an adequate remedy at law exists, unless he pleads that defense in his answer.” Town of Mentz v. Cook, 108 N. Y. 504-508, 15 N. E. 541; Hollister v. Stewart, 111 N. Y. 644-659, 19 N. E. 782; Hawes v. Dobbs, 137 N. Y. 465-470, 33 N. E. 560; Dudley v. Congregation, 138 N. Y. 451-460, 34 N. E. 281. The plaintiff had a right to ask for a specific performance and for damages in the same action. Miles v. Iron Co., 125 N. Y. 294-298, 26 N. E. 261. Where a court of equity has once obtained jurisdiction of a case, it will ordinarily retain it until the whole controversy is disposed of, and will adapt its relief to the exigencies of the case. Ostrander v. Weber, 114 N. Y. 102, 21 N. E. 112; Valentine v. Richardt, 126 N. Y. 272, 27 N. E. 255. The agreement to furnish water power was in terms one between the parties, their executors, administrators, and assigns. It was one that affected the lands now in possession of the defendant, and affected the value thereof; and, when the defendant took the conveyance of the water rights and premises which he now owns and holds, the conveyance thereof recited that he took the same subject to the agreement in question. It seems to me, therefore, that the agreement constituted a covenant running with the land, and that there was a privity of estate between the defendant and the plaintiffs, who are the assigns of the rights granted by said agreement. There was sufficient evidence to sustain the findings of fact of the referee, and they should not be disturbed. The judgment should be affirmed, with costs. All concur.