p. 307Previous to the commencement of this action, Brown transferred to the plaintiff his claim to the securities.
The plaintiff commenced this action against the defendant Varnum without making How a party to the action. His complaint demanded that an account between the plaintiff and defendant be taken of the securities.
A case was agreed upon, raising the question whether an accounting could be had between the parties to the action; and the cause was brought on before the court without a jury. The court held that the action could not be maintained as an equitable action for an accounting, but that the facts shown would sustain a judgment for damages as in an action of tort; and the court gave such judgment accordingly. From this judgment the defendant now appealed to the court at general term.
Moot, Murray & Harr is,
for the appellants, among other points relating to questions not passed on by the court, made the following:—I. In its nature, and from the frame of the complaint, answer, and stipulation, the action is plainly an equity suit. As such it was tried. The judge turned it into an action at law for the recovery of damages, as for «a tort, without the consent of the appellant, who never waived the right to try the action in that form before a jury, in consequence of which the record of judgment, upon its face, shows an excess of jurisdiction. (Salters a. Genin, 10 Abbotts' Pr., 478; S. C., 3 Bosw., 250 -264; Reubens a. Joel, 13 N. Y. (3 Kern), 488-493; N. Y. Ice Co. a. North West. Ins. Co., 10 Abbotts’ Pr., 34.) Judgment should have been rendered for the appellant. 1. The decision of the court directs a judgment in tort, and the judgment-roll shows such judgment upon a complaint addressed to the equitable powers of the court, without any amendment. 2. The record of judgment, not conforming to the decision, should be vacated, and the judgment set aside. (N. Y. Ice Co. a. North West. Ins. Co., 10 Abbotts' Pr., 34.)
II. The respondent had two forms of relief: 1. Contract (account or assumpsit). 2. Tort. He elected to hold the appellant responsible on contract, and filed his bill for accounting. He thereby elected this form of remedy, and waived the tort. (Lloyd a. Brewster, 4 Paige, 537; Cary a. Hotailing, 1 Hill,
p. 308311 , 315; Whitney a. Allaire, 4 Den., 554 ; Firemen’s, &c., a. Cochran, 27 Ala., 228 ; 1 Hill, on Torts, 44, 47; Maxwell a. Farnam, 7 How. Pr., 236 .)H. P. Fessenden, for the respondent.
—I agreethat the transaction was not a mortgage but .a pledge, and that How could not sell or dispose of the securities until payment of the note was demanded and refused. (Lewis a. Graham, 4 Abbott# Pr., 106; Wilson a. Little, 2 K. Y. (2 Oomst.), 443; Stearns a. Marsh, 4 Den., 227 ; Edw. on Bailm., 248.) If the note had been transferred to the defendant along with the securities, an equitable action might be maintained to compel the defendant to restore the securities upon the payment of the- principal debt, where he had refused to do so after an offer to pay the debt; or after a'tender and refusal, an action of tort might be maintained for damages; or upon a tender of the amount of the debt to How, or upon the payment of the note held by him, an action for damages would lie against, him upon his failure to restore the securities; or upon a tender of payment to How, an action for damages would lie against' the defendant, after a demand and refusal on his part to return the securities, for, as he acquired no greater right than How possessed, he would be obliged to restore them when it became the duty of Brown to return them. But an equitable action for an accounting could not be maintained against the defendant unless How was made a party, as otherwise the respective rights of the different parties could not be adjusted. The action was brought for an accounting without joining How as a party defendant, and the judge very properly held that it could not be maintained in its form as an equitable action; but upon the facts stated in the pleading, and upon the authority of Marquat a. Marquat (12 FT. Y. (2 Kern.), 336), he converted it into an action at law for the recovery of damages, and he gave judgment as in an action for tort. This, I hold, he could not do (Reubens a. Joel, 13 FT. Y. (3 Kern.), 488; Fire Department of the City of FT. Y. a. Harrison, 2 Dili., 455), as it involved a different mode of trial, and took away
p. 309from, the defendant the right of trial by jury which is secured to a defendant in every such action by the Constitution. Unless the parties had waived that mode of trial in the manner prescribed by law, an action to recover damages for a tortious conversion of property could be tried in no other way. No such consent appears to have been given, and the judgment was therefore erroneous.
Hilton, J., concurred.