Plaintiff consented to enter into the marriage contract with the defendant Stephen, according to the testimony given in her behalf, prior to the execution of the agreement set out in the complaint. By the terms of that agreement he undertook to, and did, grant and release unto her the parcel of real estate situated on Clinton street, in the village of Penn Yan, and he also undertook to pay to her the sum of -$20,000 at anytime she should demand it, “ after becoming the lawful wife ” of the defendant Stephen.
The scope of the complaint seems to be in the nature of an action for specific performance, requiring the execution of a deed of the Clinton street property to the plaintiff, and that such conveyance shall be executed by. both of the defendants; and . the further feature of the complaint is that the plaintiff claims to recover, as for an indebtedness under the contract, the sum of $20,000. Plaintiff gave evidence tending to support both aspects of the case. The defendants gave evidence tending to dispute the execution of the instrument relied upon by the plaintiff and set out in the complaint, and also some evidence tending to show that the conveyances made by Stephen were prior to the marriage.
Doubtless it was competent for the plaintiff to unite two causes of action, one for specific performance in respect to the Clinton street property, and the other to recover upon the alleged indebtedness, by reason of the agreement, the sum of $20,000.
' In Bruce v. Kelly (5 Hun,. 232) Daniels, J., said: “ The law does not require that legal and equitable causes of' action shall be united, even where they arise out of the same transaction, or are connected with the subject of the action. It allows it simply, without requiring that it shall be done. * * * It is a privilege conferred upon the plaintiff, "but whether he will avail himself of it is left.solely to his own. election.”
In Bradley v. Aldrich (40 N. Y. 512) it is said, viz.: “The court agreed, unanimously, that causes of action, both legal and equitable, arising out of the same transaction, may be united by *583proper allegations in the complaint.” However, when a party joins in the same complaint legal and equitable causes of action, the defendants have a right to insist upon their constitutional right to a trial by jury. That right was denied to the defendants in this case, and the exceptions taken in respect thereto present error. (Davis v. Morris, 36 N. Y. 569; Hudson v. Caryl, 44 id. 553; Wheelock v. Lee, 74 id. 495.) In the course of the opinion delivered in the latter case Rapallo, J., said: “ The joinder of an equitable cause of action with others purely legal does not deprive the defendant of the right of trial by jury. * * * When such an action is brought to trial at Special Term and the defendant demands a jury trial, the judge must determine whether any of the grounds upon which a recovery is sought are such as, at the adoption of the Constitution, were redressed by an action at law, and if so should direct the cause to be tried by a jury at the.Circuit, or at all events should refuse to try the cause without a jury.”
In Parker v. Laney (1 T. & C. 593) it was said: “ Where the complaint contains more than one cause of action, and one or more of them must be tried by a jury, all the. causes of action must be tried by a jury.” Opinion of Mullin, P. J.
In Hudson v. Caryl (supra) Gray, C., said “ that when the facts stated, arising * * * out of the same transaction, entitle a party to' both kinds of relief, the right founded upon the common law must be tried by jury ; and when at the Special Term such trial is demanded, the judge must determine whether any of the grounds upon which the recovery is sought were such as, at the adoption of the Constitution, were redressed solely by action at. law, and if so, direct that the cause be tried by jury.”
In Green v. Stewart (19 App. Div. 202) the complaint was framed in a dual aspect, and at the trial was dismissed as to one of the defendants, and then “the court retained the case for the purpose of enabling the plaintiff to prove its* damages, after it had been established that he* was not entitled to relief on the equity side of the court.”
Parker, J., in delivering the opinion, stated: “ If such a procedure could be tolerated, a party having an action maintainable at law, but which he would prefer not to have presented to the consid*584eration of a jury, could quite frequently so frame his pleading as to entitle him to go to trial before the court on its equity side, and then claim the right to have the court award the damages in violation of the constitutional guaranty of a right of trial by jury.” That case was referred to with approval in Toplitz v. Bauer (26 App. Div. 133).
The learned counsel for the respondent seeks to avoid the force of the demand for á jury trial by calling attention to a general rule of equity that, where a .court obtains jurisdiction of the parties and of the subject-matter of an action, it may adapt its- relief to the exigencies of the case. Such was the rule stated in Valentine v. Richardt (126 N. Y. 272), where it was said a court may “give to the plaintiff a money judgment simply, when that form of relief becomes necessary in order to prevent a failure of justice, and when it is for any reason impracticable to grant the specific equitable relief demanded.”
.And in Murtha w Ourley (90 N. Y. 372), to which he directs our attention, "it was said : “ A court of equity may adapt its relief to the exigencies of the case. It may, when that is all the relief needed, order a sum of money to be paid plaintiff, and give him a personal judgment therefor.” In that case it did not appear that either, party claimed that the action was a legal action triable by jury.
The respondent calls our attention to Miles v. Dover Furnace Iron Co. (125 N. Y. 294), which was an action for specific performance of a contract, and "it was said the right- to it rested in the judb, cial discretion of the court; and as it appeared that the special cir-, cumstances required the court to refuse a specific performance, it might, in lieu thereof, award damages. We see nothing in the case which aids the contention of the respondent.
The. foregoing views lead to the conclusion that the learned trial judge committed an error when he denied the demand for a jury trial.
■ There w-as another serious aspect of " the case discussed relating to the right to set aside conveyances and transfers, without having an execution either returned or in the hands of the sheriff and a levy established thereby. The views already expressed avoid the necessity of disposing of that question in this case. We think a new trial should be awarded.
*585All concurred, except Ward, J., dissenting.
Sic.