This is the second appearance of this ease in this court. Upon a former appeal this, court held that by reason of the encroachment conceded to exist the vendee was not bound to take the premises, and reversed a judgment for specific performance. (121 App. Div. 272.) Upon the second trial the plaintiff’s counsel stated that he was willing to cancel the contract upon the payment of the sum of $100, which had been paid as a deposit upon the contract of purchase, and $100 for the expense of examining title, both of these sums to bear interest, making a total' of $212, and asked to amend the complaint so as to ask for- this relief only, the title being unmarketable. The defendant objected to this amendment and excepted to the ruling of the court granting the amendment, without stating any grounds or suggesting that the defendant was entitled to a trial of the issue by a jury. The complaint originally asked for specific performance, with an allowance for the encroachment or for damages, and the effect of the amendment was to ask merely for the damages. The amendment did not change the character of the action ; it was still for specific performance of the contract, or, in the event of failure to perform, to recover the damages, a jurisdiction clearly belonging to a court of equity. It is true, of course, that it was known practically that the defendant could not perform ; that she could not give title to the premises described in the contract free and clear of incumbrances by reason of a substantial encroachment, but the fact that the defendant could not perform and that the 'plaintiff was willing to accept a return of his deposit, with expenses, did not change this action to one at law, for the defendant was legally free *71to comply with her contraet and to deliver a good title. It may he ' that she could not, as a practical matter, do this ; but she had the legal right to purchase the portion of the building encroaching upon the premises described and to convey it to the plaintiff. This is . what his contract called for, and the plaintiff had a right to insist ' either upon the fulfillment of the contract or the recovery of his damages. The defendant conceding that she could not give the title demanded, it was within the right of' the plaintiff to waive his demand for specific performance and to ask merely for the return of his deposit, with the costs which he had incurred, and under the provisions of section 723 of the Code of Civil Procedure it has been held that an amendment might be made, even though it entirely changed the cause of action, where the result sought to be reached is the same. (Deyo v. Morss, 144 N. Y. 216.)
But even were there doubt about the character of the action, after the amendment, the defendant did not raise the question of her right to a trial by jury. She simply objected and took an exception to the ruling, proceeding with the trial. She did not claim to have been surprised, and under such circumstances we are of opinion that the defendant must be deemed to have waived her right to a trial by jury. She appears to have been in the same position as the defendant in the case of Greason v. Keteltas (17 N. Y. 491), where upon an" action for the specific performance of a covenant, or for damages, the evidence disclosed facts warranting damages, but not for specific performance. The trial was commenced before a judge, without a jury, no objection being made, and it was held, that this constituted a waiver of the right to a trial by jury, and a ' judgment for damages was sustained. (See Baird v. Mayor, 74 N. Y. 382.) The defendant’s objection here was not to the mode of the trial, but to the amendment of the complaint, and, as we have already pointed out, the amendment merely recognized the situation and proposed to waive the fight to specific performance, and to ask only for the damages.
The judgment appealed from should be affirmed, with costs.
Jenks, G-aynor, Rich and Miller, JJ.,. concurred.
Judgment affirmed, with costs.