(concurring):
I concur in the affirmance of this judgment upon the ground that the plaintiff failed to establish any cause of action in equity, without expressing any opintion as to whether, upon the facts as alleged, there was any liability against the defendants as executors of the last will and testament of William H. Burgess, deceased'. The cause of action alleged was in equity; the judgment demanded was that certain premises described in the complaint be adjudged sold and that out of the money realized from the sale of such premises the sum-of $25,000 be paid to the plaintiff; that it be adjudged that the plaintiff has a lien upon said premises for said sum of $25,000; that it be adjudged that" the defendants hold them respective interests in said premises in trust for the plaintiff. All of those interested in the estate of William H. Burgess were made parties, and the right to recover was based' solely upon the theory of the existence of a trust relation as between the plaintiff and William H. Burgess, and that under the facts the plaintiff had a *43lien upon the real property described in the complaint. As a defense to this action in equity the answer alleged that the only remedy that the plaintiff had, if any, was one at law against the executors of Burgess’ estate.
At the commencement of the trial the defendants’ counsel moved to dismiss the complaint upon the ground that-the plaintiff’s remedy, if any, is at law and not in equity and that she does not show any right to equitable relief. That motion was denied. The plaintiff, in face of this express claim by the defendants that the only cause, of action was one against the representatives of Burgess’ estate, proceeded with the trial. At the close of the plaintiff’s case the defendants again moved to dismiss the complaint upon the same ground, the decision of which motion was reserved, whereupon the defendants offered no evidence and rested, again renewing the motion upon the same ground. The defendants having expressly on the trial presented the objection that the plaintiff’s remedy was at law against the executors as a reason why this action could not be maintained,' and the plaintiff, notwithstanding that objection, insisting upon proceeding with the equitable action, I think the court was justified in dismissing the complaint, leaving the plaintiff to her remedy at law by a new action against the proper parties. I think it clear for the reasons stated by Mr. Justice Laughlin that there is no cause of action in equity and that all of the defendants were entitled to a dismissal of the complaint. It is quite clear that there was no action either alleged or proved against any of the defendants except the executors of Burgess, and they were entitled to have the complaint dismissed, and the plaintiff having elected to proceed against all the defendants to enforce her equitable cause of action, insisting upon a judgment granting equitable relief, the fact that there might have been a claim at law against but one of the defendants would not justify the court in refusing to award judgment for all of the defendants.
In Thomas v. Schumacher (17 App. Div. 441; affd. on opinion below, 163 N. Y. 554) the allegations of the complaint and the proof at the trial disclosed a legal cause of action against all the defendants; and we held that where the defendants made no demand for a trial by jury, or did'not specifically *44raise the point, the action should.he tried as an action at law,' .and that it was error, to dismiss the complaint, the court having complete jurisdiction to award such judgment as the facts required. ■ Here the whole cause of action, upon which the plaintiff relied-and upon which she insisted that she,, had . a right to recover was in equity, and the' facts having failed to establish an action inequity the court was justified in dismissing the complaint. .
The court signed two decisions, one presented at the request of the adult, defendants and one presented by the inf ant defendants. Some of the conclusions of law are inconsistent. Upon these two decisions judgment was entered ' simply dismissing the complaint as to all of the defendants and awarding -the defendants costs against the. plaintiff. ' There was no decision upon the merits and the case stands simply as dismissed for want of equity. :
I concur,. therefore, in'.the modification and affirmance as suggested by Mr. Justice Laughlin, notwithstanding the fact that strictly speaking there is no decision of the court which would justify any judgment except a simple dismissal of thé complaint.
Clarke, Scottvand Miller, JJ., concurred. •.
■ Judgment .modified as directed in opinion,. and as modified . affirmed, without costs. Order to he settled on notice.