Ross v. McCaldin

Rich, J. (concurring):

The sole question is whether the Special Term erred in trying the action as one in equity, and is presented by the defendant’s exception to the refusal to dismiss the complaint upon the ground that it did not allege or the evidence, establish an equitable cause of action ; that both the pleading and proofs disclosed that the plaintiff had an adequate remedy at law.

It was toó late to raise this question at the trial. Such objection was not taken by the answer; on the contrary, the defendant; after alleging the'facts regarded most favorable to himself, demanded affirmative equitable. relief, and thus brought himself within the rule declared in Crisfield v. Murdock (127 N. Y. 315) and Gage v. Lippman (12 Misc. Rep. 93), in the former of which Judge Parker said: “ On the trial'the point was made that the plaintiff ought •not to maintain this suit because he had an adequate remedy at law,, and it is' again urged on this appeal. In the answers of the several *15defendants no such objection was made. On the contrary each defendant, after setting forth the facts deemed the most favorable to his position, demanded equitable.relief. The parties having thus submitted to the jurisdiction of-the court, it was too late to take the objection on the trial that the plaintiff had a remedy at law. * * * Whether the objection, if seasonably taken, could have been made available need not, therefore, be considered;” In the Gage case Mr: Justice Bischoff, writing for the court, says: “As to the contention that the plaintiffs had an adequate remedy at law, viewed apart from the effect of the findings made, it is only, to be said that the defendants not only failed to plead this defense, which was essential (Ostrander v. Weber, 114 N. Y. 102; Town of Mentz v. Cook, 108 id. 507), but actually submitted the case .to the equity side of the court for determination,- they themselves praying for affirmative equitable relief in the form of a decree against the plaintiffs for specific performance.”

In the case at bar the defendant demanded a decree adjudicating that the promissory notes alleged in the complaint were obtained by forcé and duress, and consequently void.' The judgment must be affirmed, with costs.

Judgment affirmed, with costs.