I concur with Mr. Justice O’Brien. If we were authorized to overrule National Tradesmen's Bank v. Wetmore (124 N. Y. 241) the considerations advanced in favor of reversing this order would have weight; but as we are bound to apply a case, I can see no escape from the conclusion that the court has the right to grant relief in this action without requiring that the remedy at law should be exhausted. The ground of that decision is that “ the subjects of fraud a/nd trusts are peculiarly matters of equity jurisdiction, which is very comprehensive where the other tribunals cannot afford relief.” In that case it was the fraudulent disposition of property that gave the court jurisdiction. In this case I think it is the trust under which the property is sought to be applied to the payment of the plaintiff’s claim which gives the court jurisdiction.
The income from this trust fund which the statute makes applicable to the payment of the debts of the person entitled to such, income can only be reached upon application to a court of equity. A court of law would have no jurisdiction to compel the trustee to *118apply any portion of such income to any purpose; and it is the inability of a court of law to reach property held in trust that.gives a court of equity its comprehensive jurisdiction over trusts. An action to reach the income of this property could not be maintained under the Code of Civil Procedure, as by section 1879 the provisions in relation to creditors’ actions are expressly held inapplicable to actions to reach property held in trust, when the trust was created by a person other than the debtor.
If the debtor is entitled to' a trial by jury as to the validity of the claim against her,, she can have such a trial in this action. She is a party to the action and can appear and dispute the plaintiff’s demand, ' and the court can send the issues as to the validity of such demand to be tried by a jury. Such a case is expressly provided for by section 970 of the Code of Civil Procedure. .
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.