Gillespie v. Montgomery

The defendants demur that the’ complaint does not state to a cause of action. position of the learned counsel for the appellants is that the plaintiff seeks equitable relief to which he is not entitled, and that a complaint in an action at law is made to the equitable side of the court.

In Leggett v. Stevens, 77 App. Div. 612 , 79 N. Y. Supp. 289 , it is held that, if the complaint states a cause of action of which some court has cognizance, whether or not the equity side of the court has jurisdiction or power to grant the relief prayed for is technically not raised by such a demurrer, but that the demurrant must challenge the complaint upon the second ground specified in section 488 of the Code of Civil Procedure. In Hotel Register Co. v. Osborne, 84 App. Div. 307 , 82 N. Y. Supp. 609 , the court states the general rule that, if the facts show that the plaintiff is entitled either to equitable or to legal relief, the complaint is not demurrable upon the ground stated in the demurrer; citing Middleton v. Ames, 37 App. Div. 510 , 57 N. Y. Supp. 443 , and Lester v. Seilliere, 50 App. Div. 239 , 63 N. Y. Supp. 748 . Abbey v. Wheeler, 170 N. Y. 122 , 127, 62 N. E. 1074 , holds that, if the facts alleged in the complaint justify legal or equitable recovery, a demurrer upon the ground stated in .this case is not well interposed, although the pleading may be open to correction by motion or otherwise.

We must first ascertain whether the. facts alleged, if taken as facts, state any cause of action. Sage v. Culver, 147 N. Y. 241 , 41 N. E. 513 . The plaintiff complains that the defendants were copartners in business as brokers and money lenders, who agreed to pay to the plaintiff, for services to the copartnership, an equal share of their profits. The plaintiff superintended their business and acted for them from August 15, 1902, until' February 21, 1903. Plaintiff’s share of such copartnership profits for such period is $5,000-or more, which is unpaid. The defendants have failed or refused to account therefor. I think that the facts stated establish plaintiff’s right to some form of legal relief.

But the point of the learned counsel for the appellants is that the plaintiff also pleads that an accounting is necessary to determine the

“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.”

The court also cites Cody v. First Nat. Bank, 63 App. Div. 199 , 71 N. Y. Supp. 277 . This case presents the converse of Swart’s Case, supra, for the sole demand was for the specific relief of money damages, and the complaint was framed directly for such prayer. And so the decision is based upon the. ground that only legal redress was demanded. The appellant also cites Kelly v. Downing, 42 N. Y. 71 . In that case the court, construing section 275 of the old Code (Code of Procedure), say:

“It was not the object of this section to aid a plaintiff who had insufficiently stated the cause of action upon which he seeks judgment, but simply to aid him if his complaint is adequate for the judgment he asks, except his prayer for relief. In this case the complaint states but one cause of action, and that one in equity. * * * There was nothing in the whole framework of the complaint, nor in the prayer for relief, that would lead Bailey to infer that a judgment would or could be taken against him upon the note.”

So far as O’Brien v. Fitzgerald, 143 N. Y. 377 , 38 N. E. 371 , is pertinent, it but holds that where the facts pleaded are ambiguous, so as to support legal action or equitable, the relief asked is the necessary, because the sole solution of the ambiguity. In Bateman v. Straus, 86 App. Div. 540 , 83 N. Y. Supp. 785 , the question before this court was whether, upon the facts pleaded, an action for specific performance of a contract of chattel property would lie; and we held that inasmuch as the plaintiff did not plead, directly or by inference, that he had no adequate remedy at law, the action would not lie. The averments that seek equitable relief may be regarded as surplusage. Hackett v. Equitable Life Assurance Soc., 50 App. Div. 266 , 272, 63 N. Y. Supp. 1092 . Without them, there is a good cause of action at law sufficiently well stated to prevail against this demurrer, and there is a specific demand in the prayer for relief for money, namely, $5,000. If, in addition thereto, the plaintiff prays for other specific or general relief to which he is not entitled, he is not therefore to be dismissed the court. Wetmore v. Porter, 92 N. Y. 76 ; Hotel Register Co. v. Osborne, supra; Mitchell v. Thorne, 134 N. Y. 536 , 32 N.

The interlocutory judgment should be affirmed, with costs. All concur.