I dissent. Ko recovery at law could be allowed upon the complaint, as no damages are alleged, nor is it alleged that any amount is due to the plaintiff from the defendant on account of the contract sued upon. The action cannot be sustained, therefore, as an action at law. The plaintiff insists upon trying this case as an action in equity, and although the result necessarily would be a judgment for tlie-defendant upon such trial, I see no reason for striking the case from the equity calendar and refusing to allow the plaintiff to try the action as one in equity, where no facts are alleged which would justify a recovery at law.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.