I am unable to concur with the majority of the court in this case for reversal. I think the action is an equitable one, pure and simple. The object of the action is to secure the specific performance ■ of a peculiar contract that an equitable action must .be brought to enforce. The complaint does not join a legal and an equitable cause of action, so as to give the defendant the right to a jury trial. The plaintiff could not split up her claims under the contract into legal and equitable actions. She can have but one action under the contract.
I have more doubt as to other propositions in the case, but have reached the conclusion on the whole case that the judgment should be affirmed, with costs'.
Judgment reversed and a new trial ordered, with costs to the appellants to abide the event.