When the distinction existed between legal and equitable proceedings, and these rights were enforced in different tribunals, it would have been the usual course on a bill filed in equity, to compel a specific performance, and if it appeared that it was impossible for the defendant to comply, to dismiss the bill and leave the plaintiff to his action at law, to recover the damages which he might have sustained. It may be doubted whether such a procedure is necessary under our -present system. The Code was intended to obviate such necessity, and to afford the plaintiff all the relief he might be entitled to, without reference to the particular form of the action.
In Wiswall a. McGown (2 Barb., 270), the bill was filed for a specific performance, and it appeared that the defendant had not the power to comply. The assistant vice-chancellor referred it to a master to ascertain the damages sustained by the plaintiff by reason of the refusal of the defendant to perform and fulfil his contract. It is true that that portion of the decree was reversed in this court, but it was under the old system, when legal and equitable relief were enforced in different tribunals, and it was upon the ground that a court of law was the only proper forum to enforce a claim for damages only. The distinction between legal and equitable remedies is now abolished, and I can see no necessity or propriety in dismissing this complaint, that the plaintiff may institute a new action to recover the damages which he has sustained. I cannot think such a procedure in *416harmony with either the letter or spirit of the Code. All the rights of the parties can he determined in the present action, and no necessity now exists for resorting to another.
An order will he entered for a reference to ascertain the damages which the plaintiff has sustained by reason of the refusal of the defendant to comply with his contract; and on the coming in of his report, a judgment will he entered that he pay the costs of this action, and specifically perform his contract; and on his failure to do so, that the plaintiff have judgment against him for the amount so reported to be due, with the costs of this action.