This cause was regularly upon the Special Term calendar for trial as an equity case. Upon motion of defendant’s counsel it was ordered stricken from that calendar on the ground that defendant was entitled to a trial by jury “as a *155matter of absolute right.” This appears both from the recitals in the order then made which is the order appealed from and from the opinion of the justice presiding at that term.
The question of defendant’s right to a jury trial as a matter of favor or in the discretion of the court was not considered and is not involved or even urged here.
Defendant in her answer makes two claims to the real ' property in question: First, that she is the owner in fee and that the deed which appears upon record by which she purports to have conveyed the property to plaintiff on or about May 18, 1915, is void. If she fails in this defense, then, Second, that on the same day said deed purports to have been made a land contract was executed between the parties by which an option was granted by plaintiff to defendant to purchase said premises on certain terms therein stated; that defendant accepted said option and that said contract has never been canceled or foreclosed and that by virtue thereof defendant is the owner of said premises subject to certain liens, etc.
The defense under the land contract is equitable in character. It is not a plea of title in fee. It concedes the fee to be in plaintiff and asserts the right to acquire it as purchaser. The relief, if any, must be specific performance of the contract. It asserts “ an interest ” but not “ an estate ” in the property, as those terms are used in section 1642 of the Code, and it is only where “ an estate ” is claimed that the action becomes by the terms of that section practically an action in ejectment.
Defendant has, therefore, joined both a legal and an equitable defense in the same answer. By so doing she has waived the statutory right to a jury trial of the legal defense which otherwise she would have had by the section of the Code above referred to. (Cogswell v. N. Y., N. H. & H. R. R. Co., 105 N. Y. 319, and cases there cited.)
“ A plaintiff who seeks legal and equitable relief in respect of the same wrong thereby waives his right to trial by jury.” (Di Menna v. Cooper & Evans Co., 220 N. Y. 392.) The same principle must apply to a defendant who, as in this case, seeks affirmative relief against the plaintiff of both a legal and equitable character in respect of the same piece of property.
*156It is still trae that the other party is not thereby prejudiced in his legal or constitutional right to a jury trial, as was held in Wheelock v. Lee (74 N. Y. 495) and Di Menna v. Cooper & Evans Co. (supra).
I find nothing in Boyd v. Boyd (12 Misc. Rep. 119; affd., 146 N. Y. 403, without opinion) holding that a vendee in a land contract may enforce specific performance and obtain title by bringing an action in ejectment against the vendor in possession. Quite the contrary, as appears from the following statement from the opinion: “ Nor is equitable jurisdiction, in actions in form or in substance for specific performance, or to set aside conveyances as between grantor and grantee, to be urged against this view. They were always of equitable cognizance. The right to recover here is based upon superior title, and whether it is to be established upon equitable grounds or not cannot affect defendants’ right to a jury trial.” The actual decision in that case was placed upon the ground that the defendants had waived their right to a jury trial by noticing the cause for trial at an Equity Term. The affirmance by the Court of Appeals may have been upon this ground, but if not, then it must have been upon the ground that defendant never had a right to a jury trial.
In view of the decision in Moot v. Moot (214 N. Y. 204) it may well be doubted whether the affirmance in Boyd v. Boyd was on the ground of waiver as held below. If not, then it must have been upon the other ground.
If defendant fails to establish upon the trial that her deed, to plaintiff is void, then she can have no relief except under her land contract. Such relief must be limited to either money damages for breach of the contract or specific performance. She does not claim money damages nor allege a breach; hence, if she does not get specific performance she can get nothing, and having pleaded her land contract here, she would be barred by the judgment from maintaining any action thereon in the future. Her allegation that by virtue of the contract she “ is the owner of the said premises ” is not an allegation of fact but a conclusion of law and must mean that she is the equitable owner only, for she does not allege that she has ever received a deed under the land contract.
Remsen v. N. Y., B. & M. B. R. Co. (111 App. Div. 413) *157was an action in ejectment to recover lands in possession of the defendant railway company and the complaint asked that in addition to recovering possession defendant be required to remove its railroad track. The court held that this latter demand was merely incidental and did not convert the action into one in equity.
Bennett v. Vonder Bosch (26 App. Div. 311) was an action in ejectment to recover an undivided interest in lands as heir-at-law of one Frances Lyons, on the ground that a deed from Frances Lyons to defendant and the will of Frances Lyons devising the same land to defendant were void because she was of unsound mind and the same were procured by fraud of the defendant. The plaintiff also asked that said deed and will be declared invalid and set aside and canceled of record and the defendant barred from setting up title under the same. The court held that these latter demands did not indicate an intention by the plaintiff to appeal to a court of equity; that if plaintiff recovered, the deed and will would necessarily be of no effect, and no judicial declaration would be necessary, and that it would be going too far to hold “ that this unnecessary and it may be improper claim for judgment should operate to change the nature and character of the plaintiff’s action.”
Both of these cases are quite unlike the present and neither of them requires us to hold that defendant has not joined a purely equitable defense with her legal defense in this action.
I think it was error to strike this cause from the Special Term calendar on the ground that defendant had an absolute right to a jury trial, and that the order should be reversed, with ten dollars costs, and the case restored to the Special Term calendar, without prejudice, however, to a motion by defendant at Special Term, if so advised, to frame issues for trial by jury of the legal issues involved.
Order affirmed, with ten dollars costs and disbursements.